Mahesh Chandra Sharma, J. - (1.) THE appellants Bhanwar Lal and Anandi Lal filed this appeal against the judgment dated January 27, 2004 of Sessions Judge, Baran (Raj.) in Sessions Case No. 152 of 2001 convicting and sentencing them under section 8/15 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 to undergo 10 years' RI and pay a fine of Rs. 1.00 lakh each and in default of payment of fine to further undergo Two years' RI.
(2.) BRIEF facts of the case are that on July 24, 2001 at 4.10 p.m. Incharge Police Chowki Balunda sent a wire less message to Police Station Mangrole that he has detained two suspects having Poppy husks. On this wireless message Ramprasad (PW.13) Incharge Police Station with police force Ramswarup (HC) Mohammed Ibrahim (FC) (PW.6 Kutubdin (FC) and Abdul Rauf, HC, in Police Jeep started for Police Chowki Balunda where Vijay Kumar (PW.3), Manoj Kumar (PW.4), Shivraj Singh (PW.5) HC Incharge Police Chowki,who were on duty detained two suspects having Poppy husks in two Gunny bags. Constable Richpal Singh vide Ex. P.5 requisition slip sent to Village Baluda to bring two witnesses. On this two witnesses Malkhan (PW.9) and Mangilal, came to Police Chowki Balunda. On reaching these two persons Incharge Police Station informed two suspects that they are to be searched whereupon both these suspects disclosed their names to be Anandilal son of Nandlal and Bhawar lal son of Tulsiram Dhakad resident of Baroda. Both these persons were informed that in Gunny Bags Poppy Husks is kept and the SHO wants to search them. They were asked whether they are ready to be searched by the SHO or before the Gazetted officer. The accused Bhanwar Lal vide Ex. P.16 and accused Andilal vide Ex. 17 made statements in writing that they are ready to be searched by the SHO. Over which both the accused agreed for search by Ram Prasad SHO. In the Gunny bag with Anandilal 5.500 Kgs. Poppy Husks was found and in his pocket Rs. 600/-, one watch, one ring of steel were also found. In the Gunny Bag with accused Bhanwar Lal 5.500 Kgs. Of Poppy Husks was found and in the pocket of Pent Rs. 435 were recovered. The recovery memo Ex. P.1 was prepared. The suspects were not having any licence to sell these Narcotic drugs with them. The suspects were arrested and arrest memos were prepared. As per norms from the recovered material some part of it was sealed separately and sent for chemical examination to the FSL. Accused were arrested vide Ex. P.6 and Ex. P7. FIR was registered at Police Station Mangrole and information about this under section 57 of the NDPS Act was sent to Sessions Judge Baran through Ex. P/14 and to SP Baran through Ex. P.15. Naksa Moka was prepared vide Ex. P.4. Statements of witnesses were recorded and the seized Narcotic Substance was sent to FSL over which receipt Ex. P./3 was given by the FSL and report of FSL was sent to police vide Ex. P.10. After completion of investigation, the police filed challan against the accused appellants under section 8/ 15 (b) NDPS Act, in the court of Sessions Judge, Baran. The Sessions Judge framed charge against the accused appellants under section 8/15 (b) of the NDPS Act. The accused appellants denied the charge and claimed to be tried. The prosecution examined 13 witnesses in support of its case and exhibited documents Ex. P.1 to Ex. P.18. The accused appellants were examined under section 313 Cr.P.C. The appellants stated that they have been falsely implicated in the case. After completion of trial, the Sessions Judge convicted and sentenced the accused appellants vide his judgment dated January 27, 2004 as mentioned above. Mr. Rakesh Kumar, learned counsel appearing for the accused appellants argued that no offence under section 8/15 (b)of the NDPS Act is made out against the accused on the evidence produced by the prosecution. As per the provisions of section 50 of the NDPS Act, option of the the rights of the accused appellants to be searched by a Gazetted Officer or the Magistrate was not offered to them. Therefore there is violation of section 50 of the NDPS Act. The Poppy Husks sent to the FSL for examination in sealed packets was kept in safe custody or not is not proved by cogent evidence. There is no independent witness produced by the prosecution in relation to search and seizure of Poppy Husks from the possession of the accused appellants. The independent witnesses produced by the prosecution PW.9 Malkhan and PW.10 Mangilal did not support the prosecution. The evidence produced by the prosecution in support of the case is not trustworthy. In these circumstances, the learned counsel argued that the accused appellants should be acquitted from the charge of section 8/15(b) of the NDPS Act. The learned counsel further made stress on the point that there is non compliance of the provisions of section 42, 50 and 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985. These provisions are mandatory in nature and non compliance of these provisions vitiates the whole trial. The learned counsel argued that the accused appellants have been falsely implicated in the case. In support of his contentions, the learned counsel for the appellants relied upon the cases reported in Ram Bharosi vs. State of Rajasthan 2001 (2) RCC 933, Ali Mustaffa Abdul Rahman Moosa vs. State of Kerala 1994 Cr.L.R. (SC 717, Mala Ram vs. State of Rajasthan 1996 Cr.L.R. (Raj.) 183 and State of Punjab vs. Baldev Singh (1999 ) 6 SCC 172. The learned Public Prosecutor on the other hand supported the judgment of conviction and sentence and argued that Narcotic Substance was recovered from the accused appellants. The trial court rightly convicted the accused appellants. The findings arrived at by the trial court are just and proper. The trial court critically examined the material available on record and the judgment of conviction is based on evidence and the accused appellants have been rightly convicted and sentenced. I have heard the learned counsel for the parties and gone through the entire record. Before proceeding further it is necessary to have a look at the relevant provisions of Sections 42, 50 and 57. of the NDPS Act in particular. Section 42 provides:- 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 or of the Border Security Force 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 otherdepartment 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 personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence 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) 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 Chapter IV relating to such drug or substance; 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 Chapter IV relating to such drug or substance: Provided 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 sun set and sun rise 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 forthwith send a copy thereof to his immediate official superior. Section 50 of the N.D.P.S. Act reads as follows : 50. Conditions under which search of persons shall be conducted. (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any ofthe departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. Section 52 reads thus : Disposal of persons arrested and articles seized. (1) Any officer arresting a person under section 41, section 42, section 43 or section 44 shall, as soon as may be, inform him of the grounds for such arrest. (2) Every person arrested and article seized under warrant issued under sub-section (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. (3) Every person arrested and article seized under sub- section (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to-- (a) the officer-in-charge of the nearest police station, or (b) the officer empowered under section 53. (4) The authority or officer to whom any person or article is forwarded under sub-section (2) or sub-section (3) shall, with all convenient dispatch, take such measures as may be necessary for the disposal according to law of such person or article. 57. Report of arrest and seizure.- Whenever anyperson makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate superior official.
(3.) SUB-section (1) of Section 42 lays down that the empowered officer, if has a prior information given by any person, he should necessarily take it down in writing and where he has reason to believe from his personal knowledge that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search, without a warrant between sunrise and sunset, and he may do so without recording his reasons of belief. The proviso to sub-section (1) lays down that if the empowered officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief. Vide sub-section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to sub-section (1), shall forthwith send a copy of the same to his immediate official superior. Section 50 of the Act prescribes the conditions under which search of a person shall be conducted. SUB-section (1) provides that when the empowered officer is about to search any suspected person, he shall, if the person to be searched so requires, take him to the nearest Gazetted Officer or the Magistrate for the purpose. Under sub-section (2) it is laid down that if such request is made by the suspected person, the officer who is to take the search, may detain the suspect until he can be brought before such Gazetted Officer or the Magistrate. SUB-section (3) lays down that when the person to be searched is brought before such a Gazetted Officer or the Magistrate and such Gazetted Officer or the Magistrate finds that there are no reasonable grounds for search, he shall forthwith discharge the person to be searched, otherwise he shall direct thatthe search be made. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted. Section 50(4) of the NDPS Act lays down that no female shall be searched by anyone excepting a female. This provision is similar to the one contained in Section 52 of the Code of Criminal Procedure, 1898 and Section 51(2) of the Code of Criminal Procedure, 1973 relating to search of females. Section 51(2) of the Code of Criminal Procedure, 1973 lays down that whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency. The empowered officer must, therefore, act in the manner provided by Section 50(4) of the NDPS Act read with Section 51(2) of the Code of Criminal Procedure, 1973 whenever it is found necessary to cause a female to be searched. The document prepared by the Investigating Officer at the spot must invariably disclose that the search was conducted in the aforesaid manner and the name of the female official who carried out the personal search of the concerned female should also be disclosed. The personal search memo of the female concerned should indicate compliance with the aforesaid provisions. Failure to do so may not only affect thecredibility of the prosecution case but may also be found as violative of the basic right of a female to be treated with decency and proper dignity. The provisions of Sections 100 and 165 Cr.P.C. are not inconsistent with the provisions of the NDPS Act and are applicable for affecting search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure, comes across a person being in possession of the narcotic drugs or the psychotropicsubstance, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided thereunder. If the investigating officer is not an empowered officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act. The Apex Court in Balbir Singhs case (1998 ) 2 SCC 724 after referring to a number of judgments, opined that failure to comply with the provisions of Cr.P.C. in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and evaluate the evidence on record keeping that in view. What is the import of the expression if such person so requires he shall be taken to the nearest Gazetted Officer or Magistrate and his search shall be made before such Officer or Magistrate as occurring in Section 50. Does the expression not visualise that to enable the concerned person to require his search to be conducted before a Gazetted Officer or a Magistrate, the empowered officer is under an obligation to inform him that he has such a right ? At this stage, relevant cases of the Apex Court, are necessary to be looked into. Their Lordships of the Supreme Court in State of Punjab vs. Baldev Singh (Five Judge Bench) (1999 ) 6 SCC 172 in paras 31,32 and 33 held as under : However, the question whether the provisions of Section 50 are mandatory or directory and if mandatory to what extent and the consequences of non-compliance with it does not strictly speaking arise in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched. Therefore, withoutexpressing any opinion as to whether the provisions of Section 50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, we hold that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty on the Investigating Officer (empowered officer) to ensure that search of the concerned person (suspect) is conducted in the manner prescribed by Section 50, by intimating to the concerned person about the existence of his right, that ifhe so requires, he shall be searched before a Gazetted Officer or a Magistrate and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, would cause prejudice to an accused and renderthe 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 during a search conducted in violation of the provisions of Section 50 of the Act. The omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it would render his conviction and sentence unsustainable. The protection provided in the section to an accused to be intimated that he has the right to have hispersonal search conducted before a Gazetted Officer or a Magistrate, if he so requires, is sacrosanct and indefeasible it cannot be disregarded by the prosecution except at its own peril. The question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the court on the basis of the evidence led at the trial and the finding on that issue, one way or the other, would be relevant for recording an orderof conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50, and particularly, the safeguards provided in that section were complied with, it would not beadvisable to cut short a criminal trial. While dealing with the case of State of Punjab vs. Baldev Singh (Five Judge Bench) (1999 ) 6 SCC 172 ) their Lordships of the Supreme Court took note of the case of Pooranmal vs. Director of Inspection (1974 SCC 345) observed as under : The judgment in Pooran Mal case only lays down that the evidence collected as a result of illegal search or seizure, could be used as evidence in proceedings against the party under the Income Tax Act. The judgment cannot be interpreted to lay down that a contraband seized as a result of illegal search or seizure, can be used to fasten that liability of unlawful possession of the contraband on the person from whom the contraband had allegedly been seized in an illegal manner. Unlawful possession of the contraband is the sine qua non for conviction under the NDPS Act and that factor has to beestablished by the prosecution beyond a reasonable doubt. Indeed the seized contraband is evidence but in the absence of proof of possession of the same, an accused cannot be held guilty under the NDPS Act. Their Lordships of the Supreme Court in State of Punjab vs. Baldev Singh (Five Judge Bench) (1999 ) 6 SCC 172 propounded following conclusions : (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing; (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused; (3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search 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 his person, during a search conducted in violation of the provisions of Section 50 of the Act; (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the endresult is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during searchoperations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards50 have by Section 50 at the trial, would render the trial unfair. (5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut- short a criminal trial; (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub-section(1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law; (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused,notwithstanding the recovery of that material during an illegal search; (8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with themandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act (9) That the judgment in Pooran Mal's case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search; (10) That the judgment in Ali Mustaffa's case correctly interprets and distinguishes the judgment in Pooran Mal's case and the broad observations made in Pirthi Chand's case and Jasbir Singh's case are not in tune with the correct exposition of law as laid down in Pooran Mal's case. The above conclusions are not a summary of our judgment and have to be read and considered in the light of the entire discussion contained in the earlier part. On the basis of the above conclusions of their Lordships of the Supreme Court in the above case on conlcusion No.5 that whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial and that finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal and that without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut- short a criminal trial, it is necessary to have a look at the evidence adduced before the trial court by the prosecution. PW.1 Ramswarup, Head Constable No. 513, Police Station Mangrole, stated that on July 24, 2001 he was posted as Malkhana Incharge. On that day he, with Ramprasad, SI on receiving message proceeded to Balunda Chowki alongwith Abdul Rauf, head Consable, Mohd. Ibrahim, Const., Jeep Driver Kutubdin with investigating box, where along with Incharge Shivraj Singh, Head constable, Richpal Singh, Constable, Ramsagar, Constable and Manoj Kumar constable were present detaining two suspects having two Gunny Bags containing Poppy Husks. SHO informed about the Narcotic Drugs with them. On this constable Richpal Singh was sent with requisition for bringing two independent witnesses to village Balunda. Richpal Singh brought two independent witnesses, in whose presence first he himself stated to be searched thereafter both the witnesses were also searched. In presence of both independent witnesses suspected persons having two Gunny Bags were searched and Gunny Bags were found to contain Poppy Husks. Anandilal was having 5.500 Kgs. Poppy husks from which 250 gms. each samples were taken. From further searching Rs. 600 were also recovered from him. From the Gunny bags with Bhanwarlal 5.500 Kgs. Of Poppy Husks was recovered and samples 250 gms. each were also taken from the said Bags. Both the accused were arrested. Both of them were also identified by him in court. The six sealed packets were deposited by him in the Malkhana. Search memo Ex. P.1 was prepared where he has put his signatures A to B. Place X where seal was also put. Seal was also deposited in Malkhana. Original Malkhana register was brought by him to the Court, which is Ex. P.2 and attested copy of it is Ex. P.2A. At Ex. P.2 receiving seized material in sealed condition was written and he has put his signatures A to B on it. PW.2 Mohd. Ibrahim, Constable at Police Station Mangrole also stated about the wireless message received from Balunda Chowki. In pursuance to that he also accompanied other persons along with Ramprasad, SHO. He stated in his statement what has been stated by PW.1 in his statement. PW.3 Vijai Kumar, FC, posted at Temporary Chowki Balunda Police Station Mangrole, stated that on that day Head Constable, Richpal Singh, Ramsagar, Manoj Kumar Constables were present in the Chowki. When they were standing firstly Anandilal, accused came and thereafter Bhanwar Lal, accused came and on suspecting some thing they have been detained. Thereafter wireless message was sent to Police Station Mangrole. SHO with full force reached Chowki Balunda. Constable Richpal was given requisition to bring two independent witnesses. The independent witnesses were shown the Gunny bags containing Narcotic substance. The suspected persons were asked to be searched by a Gazetted Officer, whereupon they gave their consent to be searched by the SHO. Two Gunny bags containing Poppy Husks weight of each of which was 5.500 kgs.were found with the suspects. Samples of 250 gms each were taken and the same were sealed. Both of them were searched and they have been asked to show licence, on which they denied that they are not having any licence. SHO first gave his search to two independent witnesses. Thereafter search of the suspected person was started. PW.4 Manoj Kumar was also posted as Constable at Police Chowki Balunda of Police Station Mangrole. He has narrated the similar statement as was given by the witness Vijai Kumar (PW.3) PW.5 Shivraj Singh, was also posted at Police Chowki Balunda, he has also stated similar line of statement as was given by the other witnesses who were posted as the Police Chowki Balunda. PW.6 Kutubdeen, was posted as driver of jeep at Police Station Mangrole. He took the jeep to Police Chowki Balunda on 24.7.2001. In the jeep along with him other police officials of Police Station including Constable Ramswarup, Constable Abdul Rauf, Constable Mohd. Ibrahim and SHO were with him. He parked the jeep at Police Chowki Balunda and returned back in the night at 8.00 p.m. at Police Station Mangrole. In the jeep he came to know that two persons were arrested whose names were Andilal and Bhanwarlal, who were present in the court. PW.7 Ramsagar, was also posted at Police Chowki Balunda in 2001 and he narrated the same story as was given by the other persons posted at the Police Chowki. He further stated that he has handed over the information under section 57 to the Addl. S.P. and Sessions Judge after arrest of the accused persons. PW.8 Bharatraj, shopkeeper, independent witness attested the Naksa Moka Ex. P.4 where he has put his signatures A to B. PW.9 Malkhan, was declared hostile. He was witness in respect of Ex. P.5, Ex.P.6 and Ex. P.7. PW.10 Mangilal was also declared hostile. He was one of the witness to Ex. P.5, Ex. P.6 and Ex. P.7. He attested his signatures on these exhibits but stated that the police wanted signature and he has made his signatures C to D. PW.11 Mukesh Kumar, Constable posted at Mangrole Police Station stated about the deposit of sealed packets with the FSL and receipt Ex. P.3. obtained by him from FSL. PW.12 Om Prakash Solanki investigated the matter and prepared Naksa Moka Ex. P.4 thereafter recorded the statements of the witnesses. He also stated about the receipt of FSL report Ex. P.10 at the Police Station. PW.13 Ramprasad, SHO Police Station Mangrole stated about the receipt of wireless message and thereafter proceeded to Chowki Balunda. He fully supported the prosecution case and the investigation done in the case. He stated about the Ex. P.16 disclosure statement of accused Bhanwarlal in respect of his wish to be searched by him and not by Gazetted Officer. He also attested Ex. P.17 statement of accused Anandilal for searching by a Gazetted Officer. He made his signatures over both these documents. The learned counsel raised argument that compliance of provisions of section 42, 50 and 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985 was not made . It is true that these provisions are mandatory in nature but how and in what manner the compliance of these sections have not been made by the police. In the consent letter to be searched by the SHO, Ex.P.16 Bhanwar Lal (accused appellant )made his signatures C to D. In the consent letter to be searched by the SHO, Ex. P.17 Anandilal (accused appellant ) made his signatures C to D. The consent letters Ex.P.15 and Ex. P.17 of Bhanwar Lal and Anandilal read as under "...[VERNACULAR TEXT OMMITED]..." Thus it cannot be said that the mandatory compliance of provisions of NDPS Act in any manner was not complied with during investigation or at the time of arrest or at the time of search or at the time of seizure of the contraband found with the accused appellants. Batch of Packets marked A1 and B1 contained yellowish brown coloured vegetable powder matter resembling fragments of poppy capsule. The substance contaned in each of the packet marked A1 and B 1 weighed 260 gms.along with respective cloth bags sent to FSL and the FSL vide report dated December 20, 2001 which is admissible under section 293 Cr.P.c.as evidence, reported that on micro chemical examination the extract of the samples contained in each of the packet marked A1 and B1 gave positive tests for the presence of chief constituents of opium, hence the samples are of dried crushed capsules of opium poppy from which juice has been extracted. The accused appellants suspecting that they are having narcotic substance,they have been detained bythe police personnel of Chowki Balunda and thereafter by wireless message officials from the Mangrole Police Station were called and in presence of two independent witnesses they have asked to be searched by a Gazetted Officer or Magistrate, bot which they stated they are agreed for searched to be made by the SHO. For possession huge quantity of poppy husks recovered from the accused appellan ts they were not having any licence for carrying the same and thus the prosecution has been able to prove the case beyond reasonable doubt against the accused appellants for contravention of the provisions of the NDPS Act. The accused appellants have been rightly convicted and sentenced by the trial court. The findings arrived at by the trial court are just and proper. I am in agreement with the findings arrived at by the trial court. On the basis of the conclusions of the Apex Court mentioned above and the findings mentioned, the arguments raised by the learned counsel accused appellants cannot be accepted. The trial court rightly convicted and sentenced the accused appellants. The judgment of conviction and sentence is confirmed. ;