P. M. CHAUHAN, J. ( 1 ) CAN a person in possession and transporting in an autorickshaw without any passenger in it in a public place 105. 700kgs. of Cannabis Sativa (charas) worth Rs. 5 29 0 be held to be in unconcious possession or without knowledge of the contents in the packets ? Were the provisions of Sec. 42 Narcotic Drugs and Psychotro- pic Substances Act 1985 (hereinafter referred to as `n. D. P. S. Act) required to be followed or the provisions under Sec. 43 of the N. D. P. S. Act are applicable in case of seizure in public place ? Are provisions fo Chapter V N. D. P. S. Act mandatory the non-compliance of which will vitiate investigation trial of conviction ipso facto or miscarriage of justice or prejudice to the accused requited to be established ? These are some of the main points requiring consideration in this acquittal appeal preferred by the State against the respondent. ( 2 ) ADDITIONAL City Sessions Judge on appreciation of the evidence held that it is amply made out from the evidence on record that the muddamal articles found from the possession of the respondent and seized undes the panchnama (Exhibit 7) received in sealed condition by the Forensic Science Laboratory on 15-1-1988 happened to be analysed by the Biological Division are found to contain botanical material of Cannabis Sativa (charas) and as per the opinion (Exhibit 12) the contents of all the 11 bags are found to contain charas. The learned trial Judge also held that the identity of the muddamal articles found from the possession of the respondent and analysed by the Forensic Science Laboratory is also duly established by the prosecution and that part of the prosecution case has not been seriously challenged on behalf of the defence. As recorded by the learned trial Judge the only aspect that was seriously pressed before him was that the prosecution has not satisfactorily proved the aspect of possession much less conscious possession and knowledge on the part of the accused who happened to be the driver of the autorickshaw from which four gunny bags were found wherein there were 11 packets the contents of which weighed about 105. 700 kgs. in the form of balls of uneven shape and size which according to the analysis and report of the Forensic Science Laboratory happened to be narcotic drugs viz. 700 kgs. in the form of balls of uneven shape and size which according to the analysis and report of the Forensic Science Laboratory happened to be narcotic drugs viz. Cannabis Sativa Learned trial Judge also observed that the mandatory provisions of Sec. 42 N. D. P. S. Act were not complied with as the information received by the Police Inspector Shri P. M. Vishen was not reduced into writing and he had not sent the copy of the information to the immediate superior Officer within the requisite time. It appears from the observation that the learned trial Judge referred the judgment in the case of HAKAM SINGH V. UNION TERRITORY 1988 CRI. L J 528 but did not clearly observe that the mandatory provisions are violated and therefore the respondent-accused Was entitled to acquittal. The learned trial Judge ultimately observed that for want of mens rea and intention and/or knowledge on the part of the respondent-accused the offences punishable under Secs. 20 (b) (ii) and 25 of N. D. P. S. Act and Sec. 66 (1) (b) of the Bombay Prohibition Act cannot be said to have been duly brought home beyond all reasonable doubt against the respondent-accused and in view of the nature of the evidence on record the respondentaccused is entitled to the benefit of doubt. The learned trial Judge accordingly extended the benefit of doubt to the respondent and acquitted So far as the finding that the respondent was carrying four gunny bags in the rickshaw without any passenger and the bags contained 11 packets of Cannabis Sativa (charas) having a total weight of 105. 700 kgs. and worth Rs. 5 29 0 is concerned we agree with the learned trial Judge as that is borne out from the evidence on record and therefor we do not think that it is necessary to discuss the evidence extensively. We will however narrate in short the prosecution case and discuss evidence. ( 3 ) POLICE Inspector Shri P. M. Vishen was the Inspector in charge of Dariapur Police Station and on 12/01/1988 at about 4. We will however narrate in short the prosecution case and discuss evidence. ( 3 ) POLICE Inspector Shri P. M. Vishen was the Inspector in charge of Dariapur Police Station and on 12/01/1988 at about 4. 00 p. m. Police Constable Navalsinh informed that charas of one Iqubal Sayed husen Bappu was to he transported to Shahpur in an autorickshaw and therefore he called the Police Sub-Inspector Vaghela Police Subinspector Vania and other Police Constables and all of them along with the informent Police Constable Navalsinh took position on the main road from Delhi Darwaja Circle to Shahpur and kept watch. At about 5. 15 p. m. the rickshaw was sighted proceeding from Delhi Darwaja to Shahpur and in that rickshaw there was no passenger but on the foot-board in the rickshaw there were gunny bags. On Police Constable Navalsinh giving signal the rickshaw was intercepted and all the Police Officers surrounded it. As people collected the rickshaw was taken to Shahpur Police Chowky at a distance of 200 to 240 paces away from there and two panch-witness were also called. Respondent Abdulrased was driving the rickshaw No. GTH 3003. All the four gunny bags which were in the rickshaw were removed from the rickshaw in presence of the panches to the Police Chowky and they were opened. There were 11 packets in four gunny bags. In the plastic bags there were charas balls and the packets were covered with newspaper. 10 pockets contained about 10 kgs. charas each and one packet-contained 5. 700 kgs. The value of the charas was assessed at Rs. 5 29 0 Photographs were taken by the Government Photographer. The respondent was asked about the licence for keeping charas but be had no licence. On personal search nothing was found from the respondent. In the rickshaw there was nothing else except the four gunny bags. The packets containing charas were wrapped with brown paper tied with thread paper slip bearing signatures of panches were fixed and sealed with the seal of the Dariapur Police Inspector. The bags in which the above said packets were kept were also sealed with the paper bearing the signature of panch-witnesses and seal of Dariapur Police Station. A detailed panchnama was prepared there and the P. S. I lodged complaint with the Dariapur Police Station. The bags in which the above said packets were kept were also sealed with the paper bearing the signature of panch-witnesses and seal of Dariapur Police Station. A detailed panchnama was prepared there and the P. S. I lodged complaint with the Dariapur Police Station. The respondent was arrested and complaint panchnama and muddamal along with the respondent were Sent to the Dariapur Police Station along with Police Sub-Inspector Vaghela. The letter addressed to the Forensic Science Laboratory was Written by the P. S. I. and that was also sent to the Police Station. The Police Station Officer Dariapur Police Station registered the offence as Prohibition Crime No. 31 of 1988 and further investigation was carried out by the Police Sub-Inspector Shri Vaghela. During the course of the investigation P. S. I. Vaghela came to know that Iqubal Sayedhusen and Meheboobkhan Rasulkhan were also involved in the offence and the charas belonged to Iqubal Sayedhusen and therefore he tried to find them but they were absconding and therefore they were shown as absconding accused in the chargesheet P. S. I. Vaghela personally carried the muddamal bags to the Forensic Science Laboratory and handed over the muddamal to the Laboratory on 15/01/1988 On chemical and biological tests the Chemical Analyser and the Director of the Forensic Science Laboratory found that all the 11 packets contained Cannabis Sativa (charas ). The Senior Scientific Assistant of the Forensic Science Laboratory and the Assistant Chemical Examiner Government of Gujarat vide their reports stated that the contents of all the exhibits were found to be charas. The biological Division of the Forensic Science Laboratory also carriedout test and in the report slated that the result of the analysis is that the exhibits contained botanical material of Cannabis Sativa (charas ). ( 4 ) AT the trial the prosecution examined P. W. 2 Police Inspector P. M. Vishen (Exh. 8) P. W. 4 Police Sub-Inspector B. S. Vaghela (Exh. 18) P. W. 3 Head Constable Arjunsinh Vaghela (Exh. 14) and P. W. 1 panch witness Gajendrasinh Chhatrasinh Rajput (Exh. 6 ). Prosecution produced the letter dated 12/01/1988 (Exh. 10) and letter by Forensic Science Laboratory and the report by the Forensic Science Laboratory and the report of the Biology Division of the Forensic Science Laboratory (Exhs. 11 12 and 13 ). 14) and P. W. 1 panch witness Gajendrasinh Chhatrasinh Rajput (Exh. 6 ). Prosecution produced the letter dated 12/01/1988 (Exh. 10) and letter by Forensic Science Laboratory and the report by the Forensic Science Laboratory and the report of the Biology Division of the Forensic Science Laboratory (Exhs. 11 12 and 13 ). All these Documents were admitted by the learned Advocate for the respondent and exhibited with consent. ( 5 ) THE respondent in the statement under Sec. 313 Criminal procedure Code admitted that on 12/01/1988 he was driving the autorickshaw No. GTH 3003 on way from Dariapur to Shahpur and the rickshaw was intercepted nearby Jivan Kamarsinh Pole opposite Municipal Garden on road between Delhi Darwaja and Shahpur and in the rickshaw there were four gummy bags and the rickshaw was taken nearby Shahpur Police Chowky and the gunny bags were taken out from the rickshaw and taken to the Shahpur Police Chowky and on. Opening the gunny bags the packets were taken out from the gunny bags. He also admitted that the muddamal charas packets and rickcshaw were attached from him. The respondent then stated in his further statement that he possessed the rickshaw driving licence for 11 years and he secures rickshaw of others and plies on hire. Two passengers met him at Kalupur Chhoka Bazaar and told him that the goods were to be taken to Shahpur and took his rickshaw nearby the truck. Two passengers took out four bags from the truck and placed in the rickshaw and both of them started on scooter and told him to follow the scooter. He was then intercepted nearby the shahpur Gate and told him to take the rickshaw to Shahpur Police Chowky. In the statement the respondent practically admitted the facts as discussed above but the defence was that the goods belonged to the two passengers and not to him. The respondent did not examine any witness. The facts about recovery packing sealing to the Forensic Science Laboratory test by the Forensic Science Laboratory and finding that the muddamal balls are charas are established by the prosecution and are practically admitted by the respondent in his statement arid were not seriously challenged before the learned trial Judge That aspect is also clear from the evidence of the Police Inspector Vishen Police Sub-Inspector Vaghela and panch-witness Shri Gajendrasinh. We therefore do not think it necessary to discuss their evidence. On scrutiny of the evidence We agree with the learned trial Judge on that finding. However this being an acquittal appeal Shri Malik learned Advocate for the respondent has challenged the report of the Forensic Science Laboratory. We shall discuss it at a later stage. ( 6 ) THE respondent was charged for the offences punishable under Sec. 20 (b) (ii) and Sec. 25 N. D. P. S. Act and Sec. 66 (1) (b) Bombay Prohibition Act 1949 for possessing and transporting Cannabis Sativa (charas) without any permit Narcotic drug as defined in Sec. 2 (xiv) includes cannabis (hemp) and cannabis (hemp) as defined in Sec. 2 (iii) includes charas. section 8 prohibits the possession transport use consumption etc. of any narcotic drug except for medical or scientific purposes. Under Sec. 20 N. D. P. S. Act the contravention of the provisions of the provisions of the Act relating to cannabis other than ganja is punishable with rigorous imprisonment for a term which shall not be less than ten years and fine which shall not be less than one lakh rupees Section 25 provides for the penalty for knowingly permitting any house or conveyance etc. to be used for the commission by another person of an offence punishable under the provisions of the Act. In Gujarat the Bombay Prohibition Act prohibits the possession and transport of the prohibited articles which include charas and the consumption possession or transportation of the intoxicant is punishable under the provisions of Sec. 66 of the Bombay Prohibition Act. ( 7 ) BEFORE proceeding on to consider as to whether conscious possession or transporting or possession with knowledge of the charas or mens rea are established by the prosecution we shall refer Secs. 35 and 54 N. D. P. S. Act. Section 35 provides:35 Presumption of culpable mental state : (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused the Court shall presume the existence of such mental state but it shall be defence for the accused to prove the fact that he bad no such mental state with respect to the act charged as an offence in that prosecutionthe Explanation to sub-sec. (1) of Sec. 35 expanding the meaning of culpable mental state provides that culpable mental state includes intention motive knowledge of a fact and belief in or reason to believe a fact. Sub-sec. (2) of Sec. 35 provides that for the purpose of Sec. 35 a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability. The burden therefore is shifted on the accused person to prove the fact that he bad no culpable mental state. The statutory presumption therefore not only requires the Court to presume the mens rea or the knowledge intention or reason to believe but also shifts the burden on the accused person to prove beyond reasonable doubt and not by mere preponderance of probability. Such statutory provision appears to have been made as normally the defence of the accused persons may be that the possession was without knowledge or without reason to believe or without conscious knowledge. It appears that as the view expressed by the Courts is that the accused is not required to rebut the presumption beyond reasonable doubt but by preponderance of probability sub- sec. (2) of Sec. 35 is enacted by the Legislature shifting the burden on the accused to establish beyond reasonable doubt his defence of having no knowledge conscious possession or mens rea and not by preponderance of probability. Another statutory presumption. under Sec. 54 N. D. P. S. Act is that in the trial under the Act it may be presumed unless and until the contrary is proved that the accused has committed an offence under Chapter IV in respect of any narcotic drug or psychotropic substance for the possession of which he fails to account satisfactorily. It is therefore clear that in the trial under the Act the Court may raise presumption till the contrary is proved that the accused has committed the offence under Chapter IV of the Act in respect of the narcotic drugs or psychotropic substances for the possession of which he fails to account satisfactorily. It is therefore clear that in the trial under the Act the Court may raise presumption till the contrary is proved that the accused has committed the offence under Chapter IV of the Act in respect of the narcotic drugs or psychotropic substances for the possession of which he fails to account satisfactorily. By using the word may the Legislature appears to have vested the discretion in the Court but even then it is clear that the Court may presume the commission of the offence by the accused and that if the accused is in possession of the narcotic drugs it is for the accused to account satisfactorily his possession. Under Sec. 35 N. D. P. S. Act the presumption is for the existence of culpable mental state and the burden shifts on the accused in case the possession of narcotic drug or psychotropic Substance is established and under Sec. 54 the presumption is for the offence under Chapter IV and the burden shifts on the accused to account satisfactorily for the possession of the narcotic drug or psychotropic substance. The statement of the respondent accused and his defence is therefore required to be considered in view of the above statutory presumptions. As discussed above the possession of charas is established by the prosecution. Before we consider the presumption and the defence of the accused we shall consider the evidence irrespective of statutory presumptions as to whether the prosecution has proved the possession with knowledge or conscious possession of the respondent. ( 8 ) AS discussed above it is established that the respondent was driving a rickshaw and carrying four gunny bags in the rickshaw and there was no passenger in the rickshaw. All the four gunny bags contained 11 packets of charas weighing 105. 700 kgs. and worth Rs. 5 29 0 On prior information the rickshaw was intercepted by the Police Inspector in charge of Dariapur Police Station and his officers and charas was recovered from the rickshaw and seized under the panchnama. On information that charas of Iqubal Sayedhusen was to be transported in the rickshaw Police Inspector Vishen and his staff were waiting for such rickshaw to pass by that road to proceed to Shahpur. On information that charas of Iqubal Sayedhusen was to be transported in the rickshaw Police Inspector Vishen and his staff were waiting for such rickshaw to pass by that road to proceed to Shahpur. The fact that the rickshaw was intercepted on the road to Shahpur is established and not denied and therefore there is no reason not to believe the evidence of Police Inspector Vishen that he had information about charas to be transported to Shahpur. If at all there had been no definite information the Police Officers could not have waited for such rickshaw to pass by and intercept the rickshaw driven by the respondent. Normally the passengers in a public conveyance like rickshaw travel with their goods in the rickshaw and such goods without any passenger may not be transported. That very unusual circumstance in this case indicates that the transporting of the bags by the respondent was not innocent. Another eloquent circumstance is that an innocent rickshaw driver driving the rickshaw just on hire basis when intercepted by the Police would immediately burst out and say that the persons proceeding on the scooter are the owners and he was following them: That would have been the spontaneous behaviour of an innocent rickshaw driver driving the rickshaw just on hire basis. No question was put to the Police Inspector Vishen or Police Subinspector Vaghela that while the rickshaw was intercepted the respondent immediately stated that the goods belonged to two persons who were proceeding on scooter. In the cross-examination of Police Inspector Vishen or Police Sub-Inspector Vaghela no question was out as to whether they had seen two persons proceeding on the scooter just ahead or nearby the rickshaw. It cannot be easily believed that if at all two strangers to the respondent would have placed the goods worth Rs. 5 29 0 in the rickshaw they would have allowed the respondent to proceed all alone and would not have kept themselves nearby. No person with goods valued at Rs. 5 29 0 would rely on such rickshaw driver without accompanying in the rickshaw or nearby the rickshaw and keeping a watch on it. If at all any such persons were proceeding on scooter the respondent would immediately burst out saying that goods belonged to the two persons who were proceeding on the scooter. 5 29 0 would rely on such rickshaw driver without accompanying in the rickshaw or nearby the rickshaw and keeping a watch on it. If at all any such persons were proceeding on scooter the respondent would immediately burst out saying that goods belonged to the two persons who were proceeding on the scooter. At least it should have been asked to Police Inspector Vishen or Police Sub-Inspector Vaghela in the cross-examination as to whether they had seen two persons proceeding ahead or nearby the rickshaw when the rickshaw was intercepted. After the arrest the respondent was taken on police custody remand and the investigation was carried out by Police Sub-Inspector Vaghela. P. S. I. Vaghela has stated that during the course of the investigations he had come to know that Iqubal Sayedhusen and Maheboobkhan Rasulkhan were also involved in the offence and he enquired for them but they were not found. Iqubal Sayedhusen is a resident of Popatiawad and Maheboobkhan Rasulkhan is a resident of Jorden Road. Both of them are shown as absconding accused in the chargesheet. Merely because those two persons are said to have been involved in the offence that does not necessarily moan that the petitioner must not have come to know about the contents of the gunny bags. According to the respondent-accused as stated by him two persons had placed gunny bags in the rickshaw and told him that the rickshaw was to be taken to Shahpur. It cannot be believed that any unknown persons would put that much confidence in a Stranger rickshaw driver and put goods worth Rs. 5 29 0 without sitting in the rickshaw. All these circumstances clearly establish the complicity of the respondent-accused conscious possession and transporting of charas from one place to another place. The learned trial Judge failed to consider all these circumstances and come to the conclusion that the conscious possession or possession with knowledge was not established It is true that it is admitted by Police Inspector Vishen and also by the panch-witness Gajendrasinh that till the plastic packets were opened smell of charas was not emitting out of the packet. The learned trial Judge failed to consider all these circumstances and come to the conclusion that the conscious possession or possession with knowledge was not established It is true that it is admitted by Police Inspector Vishen and also by the panch-witness Gajendrasinh that till the plastic packets were opened smell of charas was not emitting out of the packet. If at all any such smell would have been emitting it would have been one of the circumstances to hold the conscious possession but merely because no such smell was emitting that cannot be the only circumstance to hold that the possession was not with knowledge or consciousness. Even if smell is emitting it may happen that the innocent rickshaw driver who might not have experienced smell of charas would not be in a position to know that the contents were charas. The circumstance that no smell was emitting by itself therefore cannot be attached much importance to hold lack of knowledge of the contents of the packets. All these circumstances as discussed above clearly establish the complicity conscious possession and also possession with knowledge of charas in the gunny bags. The finding by the learned trial Judge therefore cannot be accepted. Not only that the finding cannot be accepted but we would like to observe that the learned trial Judge without taking into consideration all these circumstances and also the statutory presumptions has come to the conclusion which in our view is not reasonable proper and is perverse. ( 9 ) THE learned trial Judge did not consider the statutory under Sec. 35 and Sec. 54 of the Act probably because the attention of the learned trial Judge was not drawn to the said provisions of the Act. Reverting to the provisions of Sec. 35 the culpable mental state of the respondent should be presumed and as the fact of possession of charas is established admitted and not challenged mens rea knowledge of a fact and he reason to believe are therefore required to be statutorily presumed against the respondent. It is true that it is open to the accused to prove the fact that he had no such mental state with respect to the charge as an offence in the prosecution but that is required to he established beyond reasonable doubt and not merely by preponderance of probability. It may be that in some circumstances. It is true that it is open to the accused to prove the fact that he had no such mental state with respect to the charge as an offence in the prosecution but that is required to he established beyond reasonable doubt and not merely by preponderance of probability. It may be that in some circumstances. the mere statement may be sufficient to disprove the allegation against the accused in a prosecution and it may not be possible for the accused to lead any other evidence to dispel the presumption against him but in the instant case the vague statement of the respondent-accused that two persons had placed the goods in the rickshaw and told him that they had to proceed to Shahpur and both of them proceeded on scooter by itself not only cannot be easily accepted but also not sufficient to discharge the burden on the respondent. For various reasons as discussed above we are not prepared to accept the existence of such fact. As discussed above the prosecution has established that the respondent was in conscious possession sad in possession with knowledge and the respondent has failed to discharge the statutory presumption arising against him. We therefore hold that the accused was in unlawful possession of cannabis Sativa (charas) and was transporting it consciously and with knowledge and mens rea is established and the prosecution has established the offence. ( 10 ) THE learned trial Judge has observed that the view expressed by him about the conscious possession or the possession with knowledge is fortified by the principle laid down in JAWAR ARJAN V. STATE OF GUJARAT AIR 1979 SC 1500 : (1979 GLR 840 ). In that case under Sec. 66 (1) (b) Bombay Prohibition Act the appellant rickshaw driver was driving the rickshaw in which the accused No. 2 was a passenger. When the rickshaw was searched some balloons kept in a bag containing illicit liquor were found. The passenger was the owner of those articles. The rickshaw driver was also convicted as having conscious knowledge of the fact that the bag contained prohibited articles. The Courts had held that the accused rickshaw driver had conscious knowledge of the fact that the articles contained illicit liquor and that was based on the information which the Police derived from the sources which indicated that the accused was in collusion with the co-accused. The Courts had held that the accused rickshaw driver had conscious knowledge of the fact that the articles contained illicit liquor and that was based on the information which the Police derived from the sources which indicated that the accused was in collusion with the co-accused. It was observed by Their Lordships of the Supreme Court that such information was not admissible and could not have been used against the appellant. The balloons in the bags were not visible and the bags were kept in the dicky of the rickshaw. It was held that the appellant was merely a rickshaw driver and the passenger was in the rickshaw and the passenger had placed the bags containing such articles in the dicky. On that fact the accused-appellant was acquitted and no other principle of law is laid down in that judgment. From the facts of the case Their Lordships observed that even the knowledge could not have been imputed to the mere rickshaw driver. It is clear that in that case the passenger with the bag was in the rickshaw. In the instant case no such passenger was there. That judgment therefore is not relevant to the facts of the instant case. ( 11 ) THE Supreme Court while considering the relevant provisions of Secs. 9 and 10 of the Opium Act has considered the physical custody of the opium sufficient to shift the burden on the accused to establish that he was not knowingly in possession of opium. In INDER SAIN V. STATE OF PUNJAB AIR 1973 SC 2309 the accused got the parcel of apples in which opium was also found. The defence of the accused was that he did not know anything about the contents of the parcel. In that case the prosecution had not adduced any evidence to establish that the accused was knowingly in possession of the opium. The accused had secured endorsement on the railway receipt from the consignee and presented it before the parcel clerk and obtained the parcel. There was no evidence that the accused was aware that the parcel contained any contraband substance much less opium. The accused had secured endorsement on the railway receipt from the consignee and presented it before the parcel clerk and obtained the parcel. There was no evidence that the accused was aware that the parcel contained any contraband substance much less opium. It was urged on behalf of the prosecution in that case that in most of the cases of unauthorised possession of the contraband the prosecution will never be able to prove that the accused was knowingly in possession of the contraband article and that the accused was in conscious possession and by virtue of Sec. 10 of the Opium Act the burden to prove that he was not in conscious possession is upon the accused. Similar argument is also advanced before us. Referring to Sec. 10 of the Opium Act it was observed by Their Lordships of the Supreme Court that : that section seems to proceed on the assumption if it is proved that the accused had something to do with opium then the burden of proof that he has not committed an offence will be upon the accused. In other words when once it is proved in a prosecution under Sec. 9 of the Act that the accused was in physical custody of opium it is for the accused to prove satisfactorily that he has not committed an offence by showing that be was not knowingly in possession of opium. It would therefore appear that the prosecution need only show that the accused was directly concerned In dealing with opium. If the prosecution shows that the accused bad physical custody of opium then unless the accused proves by preponderance of probability that he was not in conscious possession of the article the presumption under Sec. 10 would arise. We do not think that the language of Sec. 10 would warrant the proposition that for the presumption in the section to arise it is necessary for the prosecution to establish conscious possession. It is also observed that : 18 In our opinion Sec. 10 would become otiose if It were held that prosecution must prove conscious possession before it can resort to the presumption envisaged in the section. It is also observed that : 18 In our opinion Sec. 10 would become otiose if It were held that prosecution must prove conscious possession before it can resort to the presumption envisaged in the section. As we said Sec. 10 proceeds on the assumption that a person who is in any way concerned with opium or has dealt with it in any manner must be presumed to have committed an offence under Sec. 9 of the Act unless the person can satisfactorily prove by preponderance of probability either that he was not knowingly in possession or other circumstances which will exonerate him. The burden to account will arise only when the accused is in some manner found to be concerned with opium or has otherwise dealt with it. After referring judgments in STATE V. SHAM SINGH 1971 1 ILR (Pandh) 130 AND IN SHEO RAJ SINGH V. EMPEROR AIR 1944 OUDH 297 the penultiate observation by Their Lordships is : 20 In the last analysis therefore it is only necessary for the prosecution to establish that the accused has some direct relationship with the article or has otherwise dealt with it. If the prosecution proves detention of the article or physical custody of it then the burden of proving that the accused was not knowingly in possession of the article is upon him. The practical difficulty of the prosecution to prove something within the exclusive knowledge of the accused must have made the legislature think that if the or us is placed on the prosecution the object of the Act would be frustrated. It is also observed by Their Lordships : 21 It does not follow from this that the word possess in Sec. 9 does not connote conscious possession. Knowledge is an essential ingredient of the offence as the word possess connotes in the context of Sec. 9 possession with knowledge. The legislature could tot have intended to make mere physical custody without knowledge an offence A conviction under Sec. 9 (a) would involve some stigma and it is only proper then to presume that the legislature intended that possession must be conscious possession. 22 But It is a different thing to say that the prosecution should prove that the accused was knowingly in possession. 22 But It is a different thing to say that the prosecution should prove that the accused was knowingly in possession. It seems to us that by virtue of Sec. 10 the onus of proof is placed on the accused ashen the prosecution has shown by evidence that the accused has dealt with the article or has physical custody of the same or is directly concerned with It to prove by preponderance of probability that he did not knowingly possess the article in that case Their Lordships of the Supreme Court confirmed the conviction. In the instant case the circumstances and facts clearly establish that the accused was in possession and transporting huge quantity of charas. The observations in Inder Sains case are therefore applicable on all fours to the facts of the instant case. ( 12 ) SUBSEQUENTLY in KAILASH CHANDRA SAHU V. REPUBLIC OF INDIA AIR 1985 SC 1672 while considering the provisions of Secs. 9 and 10 of the Opium Act Their Lordships of the Supreme Court referring the case of Inder Sain (supra) reiterated the same principle of law. The accused in that case was a licence holder in possession of ganja shop from which 665 gms. of opium was recovered in absence of the accused and in presence of the servant of the accused. The same contention of absence of knowledge and conscious possession was raised but repelled by Their Lordships. The judgment in PRITHVISINGHJI BHIMSINGHJI V. STATE OF BOMBAY AIR 1960 SC 483 AND RADHAKRISHNAN V. STATE OF U. P. 1963 SUPP. 1 SCR 408 : ( AIR 1963 SC 822 ) were relied on by the accused but Their Lordships observed that the said decisions are not directly on the point and the decision of the Supreme Court in Inder Sain (supra) clinches the issue on the point of law. ( 13 ) IN STATE OF MAHARASHTRA V. NATWARLAL AIR 1980 SC 593 the accused was found in possession of gold biscuits and question arose for consideration as to whether the accused was in possession with the requisite guilty knowledge or mens rea and it was observed that guilty knowledge or mens rea can be established by circumstantial evidence. ( 13 ) IN STATE OF MAHARASHTRA V. NATWARLAL AIR 1980 SC 593 the accused was found in possession of gold biscuits and question arose for consideration as to whether the accused was in possession with the requisite guilty knowledge or mens rea and it was observed that guilty knowledge or mens rea can be established by circumstantial evidence. ( 14 ) IN DHANVANTRAI BALWANTRAI DESAI V. STATE OF MAHARASHTRA AIR 1964 SC 575 Their Lordships of the Supreme Court while considering the provisions of Sec. 4 (1) Prevention of Corruption Act providing for the presumption observed that In order to raise the presumption under Sec. 4 (1) Prevention of Corruption Act what the prosecution has to prove is that the accused person has received gratification which wasnot legal remuneration and when it is shown that he has received a certain sum of money which was not a legal remuneration then the Condition proscribed by Sec. 4 (1) is satisfied and the presumption thereunder must be raised. About the burden on the accused it is observed that : the burden resting on the accused person in such a ease would not be as light as it is where a presumption is raised under Sec. 114 of the Evidence Act and cannot be held to be discharge merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words unless the contrary is proved which occur in this provision make it clear that the presumption has to be rebutted by proof and not by a bare explanation which is merely plausible A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existance to be so probable that a reasonable man would act on the supposition that it exists. Unless therefore the explanation is supported by proof the presumption created by the provision cannot be said to be rebutted. ( 15 ) IN MAN SINGH V. DELHI ADMINISTRATION AIR 1979 SC 1455 the explanation which the accused immediately offered after the raid which was to some extent corroborated by the witness was considered sufficient for explaining the possession of the currency rote. ( 15 ) IN MAN SINGH V. DELHI ADMINISTRATION AIR 1979 SC 1455 the explanation which the accused immediately offered after the raid which was to some extent corroborated by the witness was considered sufficient for explaining the possession of the currency rote. ( 16 ) SHRI Malik learned Advocate for the respondent while asserting that conscious possession with the knowledge of the contraband articles is required to be established referred several judgments of the Supreme Court and other High Courts some of which were referred in the case of Inder Sain and Kailash Chandra (supra ). SUDHDEO JHA UTPAL V. STATE OF BIHAR AIR 1957 SC 466 referred by Shri Malik was a case under Secs. 420 120 etc. I. P. Code and considering the said provisions and the contention of the accused that he did not consciously make false representation but in accordance with the practice obtaining in the officer signed the applications placed before him by the subordinate staff as a matter of routine it was accepted that no culpability should be attached to the action of the accused and that in such cases the burden never shifts on the accused. The said judgment is therefore not relevant to the facts of the instant case. The decision in STATE OF HIMACHAL PRADESH V. BUTI NATH AIR 1957 HP 37 was under Sec. 9 of the Opium Act. Opium was recovered from the motor garage belonging to the accused to which the driver had access. On fact it was held that the opium might have been introduced into the garage either by the accused or by the driver and in absence of the proof and cogent evidence to that effect it was not possible to hold that opium was kept in the garage with the knowledge and consent of the accused. On the facts of that case acquittal appeal was therefore rejected by the Himachal Pradesh High Court. ( 17 ) THE judgment in JHAGRU KURMI V. STATE AIR 1950 ALLAHABAD 497 is also not relevant as the High Court was considering the provisions of Sec. 411 of the Evidence Act (sic Penal Code) and the presumption under Sec. 114 of the Evidence Act. Similar is the case in STATE V. JAIGOVIND AIR 1951 Raj 89 AND ABDUR RAHIM V. EMPEROR AIR 1927 NAG 40 relied on by Shri Malik. Similar is the case in STATE V. JAIGOVIND AIR 1951 Raj 89 AND ABDUR RAHIM V. EMPEROR AIR 1927 NAG 40 relied on by Shri Malik. ( 18 ) EMPEROR V. LATOOR AIR 1930 All 33 was a case under Sec. 212 I. P. Code and the point for consideration is not relevant for the purpose of the instant case. ( 19 ) DICKINS V. GILL 1896 2 QB 310 was a case under the Post Office (Protection) Act 1884 Sec. 7 of which provided that a person shall net make or unless he shews a lawful excuse have in his possession any die plate instrument or materials for making any fictitious stamp. On facts it was held that the possession was without lawful excuse and the appeal was allowed. I fail to understand the relevance of the authority to the facts of the instant case. ( 20 ) CHEDI MALA and ORS. V. THE KING EMPEROR VIII CALCUTTA WEEKLY NOTES 349 was a case under the provisions of Sec. 9 of the Opium Act. The observation are against the respondent as it is clearly held that Sec. 10 of the Opium Act should be read as providing that opium in respect of which it is to be presumed that an offence has been committed must be opium in the possession of the accused and that it is also plain that the possession need not be to the knowledge of the accused otherwise the section would not be necessary. The section is a penal one and must therefore be read plainly and the plain meaning is that if excessive opium is found in a mans possession he is liable to be punished unless he is able to account for it satisfactorily. . ( 21 ) CYRIL C. BAKER V. EMPEROR AIR 1930 Cal 668 referred by Shri Malik is also not helpful to the respondent as ultimately on facts it was held that the boy was who absconding after the raid might have placed opium in the cabin. It was only on facts the benefit of doubt was extended. . ( 21 ) CYRIL C. BAKER V. EMPEROR AIR 1930 Cal 668 referred by Shri Malik is also not helpful to the respondent as ultimately on facts it was held that the boy was who absconding after the raid might have placed opium in the cabin. It was only on facts the benefit of doubt was extended. ( 22 ) AS discussed above the law laid down by the Supreme Court is that in case of such prohibited articles wherein the presumption arises either under the provisions of Sec. 10 of the Opium Act or Sec. 54 N. D. P. S. Act the prosecution has to establish the possession and it is not necessary to establish the knowledge or the conscious possession and it is for the accused to account for the possession. In view of the factual aspect and also the provisions of Sec. 54 N. D. P. S. Act as discussed above we hold that the respondent was admittedly in possession of charas and that he was tn conscious possession of charas or in possession with knowledge. The finding of the learned trial Judge therefore cannot be accepted. The illegal possession of charas is therefore established by the prosecution. ( 23 ) THE learned Judge has not clearly hold that the mandatory provisions of N. D. P. S. Act are violated and therefore the respondent should be acquitted. The learned trial Judge however referred the case of HAKAM SINGH V. UNION TERRITORY 1988 CRI. LJ 528 and the observation in that judgment. Even though the learned trial Judge has not found violation of the mandatory provisions of the N. D. P. S. Act and acquitted on that ground Shri Malik learned Advocate for the respondent has asserted that the provisions of Secs. 41 42 43 52 and 57 of the Act are violated. It is the right of the respondent to support the acquittal by asserting the other grounds available to the respondent and the appellate Court should consider such contentions even though not contended or considered by the trial Court. In the submission of Shri Malik the mandatory provisions of Secs. 41 42 43 52 and 57 of the Act are violated. It is the right of the respondent to support the acquittal by asserting the other grounds available to the respondent and the appellate Court should consider such contentions even though not contended or considered by the trial Court. In the submission of Shri Malik the mandatory provisions of Secs. 41 42 and 43 are violated as the information was not reduced into writing by the Police Inspector Shri Vishen and the seal of the Police Station Officer was not properly affixed and the full report of the case was not submitted to the immediate superior. Shri Malik also challenged the evidence establishing that the substance was charas. That aspect will be subsequently dealt with. As Shri Malik learned Advocate for the respondent has raised the above contentions it is necessary to ascertain (1) Whether Sec. 41 Sec. 42 or Sec. 43 is applicable to the facts of the instant case ? (2) Whether the offence is a cognizable offence ? (3) Whether the Police Inspector had the powers to seize and arrest ? (4) Whether the provisions of Sec. 42 regarding taking down the information in writing are mandatory ? (5) Whether the provisions of Sec. 57 regarding submittings the full report within 48 hours to the immediate superior are mandatory or directory ? (6) Whether procedural provisions of Chapter V N. D. P. S. Act are mandatory or directory and (7) Whether infraction of any provision of Chapter V vitiate investigation proceedings trial or conviction ipso facto or prejudice to accused or miscarriage of justice is required to be proved by accused ? (6) Whether procedural provisions of Chapter V N. D. P. S. Act are mandatory or directory and (7) Whether infraction of any provision of Chapter V vitiate investigation proceedings trial or conviction ipso facto or prejudice to accused or miscarriage of justice is required to be proved by accused ? ( 24 ) CHAPTER V N. D. P. S. Act provides for the procedure to be followed for issuing the warrant; for entry search and seizure and arrest in public places; power to stop and search the conveyance; conditions under which the search of the person be conducted informing the ground of arrest to the accused; forwarding the accused to the Magistrate who has issued the warrant; forwarding the arrested accused and the seized muddamal to Officer in charge of the nearest Police Station; the Officer in charge of the Police Station taking the charge of the articles seized and delivered to him; report of the arrest and seizure to superior Officer and application of the provisions of the Code of Criminal Procedure 1973 in so far as they are not in consistent with the provisions of the Act to all warrants issued and the arrests searches and seizures made under the Act. ( 25 ) SHRI Malik. learned Advocate for the respondent. submits that the provisions of Secs. 41 and 42 are offended. We shall therefore consider the provisions of Secs. 41 42 and 43 N. D. P. S. Act as in our view. the provisions of Secs. 43 and 49 of the Act are applicable and not the provisions of Secs. 41 and 42 N. D. P. S. Act. Section 41 empowers the Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of the Second Class specially empowered by the State Government in that behalf to issue a warrant for the arrest of any person whom he has reason to believe has committed any offence punishable under Chapter IV or for the search whether by day or by night of any building conveyance or place. in which he has reason to believe any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed or any document or any other article which may furnish evidence of the commission of such offence is kept or concealed. Sub-sec. in which he has reason to believe any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed or any document or any other article which may furnish evidence of the commission of such offence is kept or concealed. Sub-sec. (2) of Sec. 41 authorises Gazetted Officers of various departments of the Central Government specified in that section empowered by general or special order by the Central Government or such Officer of the Revenue Drugs control Excise Police or any other department of a State Government as is empowered in that behalf by general or special order of the State Government to search a building conveyance or place by himself or authorise an Officer subordinate to him but superior in rank to a peon sepoy or a constable to arrest such a person or search a building conveyance or place. It it evident that the provisions Sec. 41 are regarding the empowering of such Officers. If the information is given by any other person then such empowered Officer should lake it down in writing and then take further action for arrest or search a building conveyance or place by himself or authorise a subordinate Officer but above the rank of peon sepoy or constable to arrest or search a building conveyance or place. Section 41 males provisions empowering such Officers and also regarding the authority of the empowered Officer to authorise his subordinate to take action or himself take action of arrest or search. By Notification No. GHL-14 NDS 1082 dated 15/06/1987 the Government of Gujarat in exercise of power under sub-sec. (2) Sec. 41 N. D. P. S. Act empowered for the purpose of sub-sec. (2) of Sec. 41 all Officers of the Police Department of and above the rank of Inspector of Police posted in any part of the State of Gujarat and other Officers of the Prohibition Excise Department Drugs Cosmetics Department etc. The Officer of the rank of and above Inspector of police therefore can exercise the powers under sub-sec. (2) of Sec. 41 N. D. P. S. Act. Under Sec. 41 N. D. P. S. Act arrest and search can he made either under warrant issued by Magistrate or by authorised Officer or under orders of such authorised Officer. Without being empowered under sub-sec. (2) of Sec. 41 N. D. P. S. Act. Under Sec. 41 N. D. P. S. Act arrest and search can he made either under warrant issued by Magistrate or by authorised Officer or under orders of such authorised Officer. Without being empowered under sub-sec. (2) Sec. 41 N. D. P. S. Act the Officer cannot arrest and search without warrant or authorise arrest and search. That however does not mean that other Officers who are authorised under Sec. 42 or who can exercise the power under Sec. 43 of the Act cannot take action for arrest and seizure of the prohibited articles. Section 41 is therefore not relevant and applicable to the facts of the instant case. ( 26 ) SECTION 42 N. D. P. S. Act provides for the power of entry search seizure and arrest without warrant or authorisation Any 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 that 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 the State Government as is empowered in this behalf by the general or special order of the State Government if be 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 enter into and search any such buildings conveyance or place and in case of resistance break open any door and remove any obstacle to such entry and seize the drug and 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. The proviso to sub-sec. The proviso to sub-sec. (1) of Sec. 42 of the Act authorises such Officer to enter and search the building conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief if such Officer has reason to believe that the search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender Sub-sec. (2) of Sec. 42 makes it obligatory on the Officer who takes down any information in writing under sub-sec. (1) or recording the grounds of his belief under the proviso of sub-sec. (1) to forthwith send a copy thereof to his immediate superior. The provisions of Sec. 42 are applicable in the case in which a building conveyance or place is to be entered into and searched. If such places are not to be entered into and searched the provisions of Sec. 42 will not be applicable. The provision of recording in writing the information received by such Officer and forthwith sending the copy of such writing to the immediate official superior is advisedly made to prevent the empowered Officer from misusing the power of entry into the building conveyance or place which are considered to be the protected places for an individual who has right to exclude the outsider and the privacy of the occupants of such places may not be disturbed. A house or such protected place is considered to be a fortress of a person and he has right to prevent or exclude other persons and that right is always protected by the State. Such procedure restricting the entry and search is therefore made in Sec. 42 Provision of Sec. 42 is applicable only in the case of entry and search in a building conveyance or place As defined in Sec. 2 (viii) N. D. P. S. Act conveyance means a conveyance of any description whatsoever and includes any aircraft vessel and therefore the rickshaw is a conveyance as defined in the Act However the provisions of Sec. 42 will be applicable only if the entry is to be made and search is to be carried out. In the instant case the question of entry in the rickshaw did not arise and therefore the provisions of Sec. 42 will not be applicable Apart from that the specific provisions in Sec. 43 provide for the seizure and arrest in a public place or in transit and that also clearly exclude the application of the provisions of Sec. 42 in the instant case. It was therefore not necessary to record in writing the grounds of the information and to forward such information forthwith to the immediate official superior. So far as the authority under sub-sec. (1) of Sec. 42 is concerned P. I. Vishen was duly authorised by the State Government by Notification No GHL-14 NDS 1082-10577 (i)-M dated 15/06/1987 by which in exercise of the powers conferred by sub-sec. (1) of Sec. 42 N. D. P. S. Act the Government of Gujarat has invested all the Police Officers of and above the rank of Head Constable in the State of Gujarat within the limits of their respective jurisdiction the power of entry search seizure detention and arrest without warrant between sunset and sunrise exercisable under Sec. 42 of the Act. By that notification the powers which can be exercised under the proviso of sub-sec. (1) of Sec. 42 are also conferred to the said Officers. P. I. Vishen who was the Police Inspector in charge of the Dariapur Police Station within the jurisdiction of which the offence occurred was authorised to exercise the powers under sub-sec. (1) of Sec. 42 of the N. D. P. S. Act. (1) of Sec. 42 are also conferred to the said Officers. P. I. Vishen who was the Police Inspector in charge of the Dariapur Police Station within the jurisdiction of which the offence occurred was authorised to exercise the powers under sub-sec. (1) of Sec. 42 of the N. D. P. S. Act. ( 27 ) SECTION 43 empowering seizure and arrest in a public place relevant to the facts of the instant case provides :43 Power of seizure and arrest in public places Any Officer of any of the departments mentioned in Sec. 42 may (a) seize in any public place or in transit any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable Under Chapter IV has been committed and along with suck drug or substance any animal or conveyance or article liable to confiscation under this Act any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV and if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be unlawful arrest him and any other person in his company Explanation :- For the purposes of this section the expression public place includes any public conveyance hotel shop or other place intended for use by or accessible to the public. Section 43 gives plenary power to the Officers to seize in a public place or in transit any narcotic drug or psychotropic substance and to detain and search and person whom he has reason to believe has committed the offence. The only restriction is that such powers can be exercised by the Officer of any Department specified in Sec. 42. The Police Department is specifically mentioned in Sec. 42 and as stated above even under Sec. 42 the Police Inspector in charge of the Police Station is empowered to exercise the powers. Police Inspector Vishen was therefore an authorised Officer to exercise the power and take action for seizure detention search and arrest under Sec. 43 of the Act. The Police Department is specifically mentioned in Sec. 42 and as stated above even under Sec. 42 the Police Inspector in charge of the Police Station is empowered to exercise the powers. Police Inspector Vishen was therefore an authorised Officer to exercise the power and take action for seizure detention search and arrest under Sec. 43 of the Act. Admittedly the rickshaw was in a public place and it is established that the narcotic drug was taken in it and therefore the Police Officer had powers to detain and seize the narcotic drug and detain and search the rickshaw and the respondent. By explanation wide connotation is given to the expression public place which includes even public conveyance i. e. autorickshaw meant for hire. Apart from that rickshaw itself was at a public place and. therefore the power to search and seize the narcotic drug from the rickshaw could be exercised under Sec. 43 of the Act. ( 28 ) IN our View therefore the provisions of Secs. 41 and 42 N. D. P. S. Act are not applicable but the provisions of Sec. 43 N. D. P. S. Act are applicable for any search and seizure of the narcotic drug in a conveyance etc. and detaining and searching any person in a public place We are fortified in our view by the judgment of this Court in ASLAMBHAI IBRAHIMBHAI MEMON and ANR. V. STATE OF GUJARAT (REPORTED IN 1990 (1) GLR 150 ) CRIMINAL APPEAL NO 844 OF 1988 delivered by a Division Bench of this Court consisting of M. B. Shah and B. S. Kapadia JJ on 5/10/1989 in which the learned Brother Judges on considering the relevant provisions of Secs. 41 42 and 43 of the N. D. P. S. Act have observed (at page No. 158 para 3. 11 of GLR) thus the intention of the Legislature in Secs. 41 42 and 43 of the N. D. P. S. Act have observed (at page No. 158 para 3. 11 of GLR) thus the intention of the Legislature in Secs. 41 and 42 is different as revealed from the language of sections as stated above from the one in Sec. 43 which authorises any Officer of the departments mentioned in Sec. 42 for search seizure arrest and detention in any public place or in transit in respect of any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed and along with such drug or substance any animal or conveyance or article is liable to be confiscated under the Act or any document or other article which he has reason to believe may furnish evidence of the commission of an Office punishable under Chapter IV relating to such drug or substance thus Sec. 43 speaks about search and seizure from any building conveyance or enclosed place while Sec. 43 speaks about the search and seizure from public Place or in transit. It is important to note that the wordings of Secs. 41 and 42 with regard to information taken in writing have been deliberately omitted by the Legislature in Sec. 43 and in our view that has been done so advisedly inasmuch as the Police Officer empowered under Sec. 42 may get information with regard to the person in any public place or in transit at the last moment and if he has to undergo the procedure of taking that information in writing and recording the reasons for his belief possibly such information may not be useful When that is so whenever any search or seizure is to be made in any public place or in a vehicle in transit or any person is to be arrested or detained from a public place it is not intended by the Legislature to take down the said information in writing. ( 29 ) SECTION 49 also empowers the Officer authorised under Sec. 42 N. D. P. S. Act to stop any animal or conveyance or in the case of an aircraft compel it to land and to rummage and search the conveyance or part thereof examine and search any goods on the animal or in the conveyance and if necessary to stop the animal or the conveyance and may use all lawful means for stopping the animal or the conveyance. The only necessary requisite is that such Officer should have reason to suspect the use of the conveyance for transport of any narcotic drug or psychotropic substance. That Section does not require that the information should be written down in writing and forwarded to the immediate superior Police Inspector Vishen was exercising the power under Sec. 49 of the Act also. ( 30 ) IN view of our finding that the provisions of Sec. 43 or Sec. 49 N. D. P. S. Act are applicable and provisions of Sec. 41 and Sec. 42 are not applicable and that the provisions of Secs. 43 and 49 are not exercised violated it is not necessary for us to refer to certain judgments by High Courts on the point. We shall however refer some of them as diverse views are expressed by several High Courts Judgment in the case of HAKAM SINGH V. UNION TERRITORY 1988 CRI. LJ 528 was referred before trial Court in that case the Assistant Sub-Inspector had received secret information that the accused would be passing by the bus stop of village Dhanas carrying crushed poppy heads. The accused on exercised reaching the bus stop and on seeing the Police party turned back whereupon he was overpowered on suspicion and from his right hand one Jhola was recovered which contained crushed poppy heads weighing 1. 5 kgs. The defence of the accused was that he was falsely implicated. He was ultimately convicted by the Court and in appeal the conviction was challenged mainly on the ground that the provisions of the Act being mandatory were not complied with. Learned single Judge of the Punjab and Haryana High Court Considered the provisions of Secs. 5 kgs. The defence of the accused was that he was falsely implicated. He was ultimately convicted by the Court and in appeal the conviction was challenged mainly on the ground that the provisions of the Act being mandatory were not complied with. Learned single Judge of the Punjab and Haryana High Court Considered the provisions of Secs. 41 and 42 N. D. P. S. Act and observed that the authorised Police Officer could exercise the power only if he had reason to believe from personal knowledge or information given by any person and taken down in writing but such information was not taken down in writing. According to the learned Judge the prerequisite is laid exercised down not without any purpose and the contravention would certainly cause prejudice to the accused because in absence of any writing there will be no chance to cross-examine the Officer with regard to the factum and contents of the information received. The provisions of Secs. 43 and 49 are not considered by the learned Judge. We are also not in a position to endorse the view that in absence of writing there will be no chance to cross-examine the Officer with regard to the factum and contents of the information received and that would cause prejudice to the accused. It is always a question of fact required to be considered in the light of the circumstances and the relevant provisions and to ascertain as to whether prejudice is caused to the accused. Merely because a particular provision is not strictly complied with the necessary implication may not always be that prejudice is exercised caused to the accused. The learned Judge also considered the provisions of Secs. 50 52 and 74 which we will discuss at a later stage. ( 31 ) KARAM SINGH V. STATE OF PUNJAB 1987 DRUGS CASES 194 was a case in which the Head Constable searched the accused and recovered 50 gms. of opium from the right side pocket of the pant of the accused. It was contended before the learned Judge that the Head Constable was not the Police Officer who was empowered by the State Government to exercise the powers. It war urged on behalf of the State that on a combined reading of Secs. of opium from the right side pocket of the pant of the accused. It was contended before the learned Judge that the Head Constable was not the Police Officer who was empowered by the State Government to exercise the powers. It war urged on behalf of the State that on a combined reading of Secs. 37 and 51 of N. D. P. S. Act the offence is cognizable and the provisions of the Code of Criminal Procedure so exercised far as they are not inconsistent with the provisions of the Act shall apply to all arrests searches and seizures under the Act and therefore the investigation and trial of the case has rightly been conducted in accordance with the procedural law laid down in the Code. The learned Judge considering the provisions of Sec. 4 of the Criminal Procedure Code and the observation of the Supreme Court in STATE OF GUJARAT V. LAL SINGH KRISHAN SINGH AIR 1981 SC 368 held in terms that the offence under the N. D. P. S. Act is a cognizable offence and that the Held Constable Sumel Singh was not entitled to arrest the accused nor could he conduct the search in violation of the relevant provisions contained in Chapter V nor the opium recovered been seized or secured in the manner provided for in the said Chapter. It is also observed that : it hardly need be emphasised that if the power of the special or authorised Police Officer to deal with the offences under the Act and therefore to investigate which essentially includes the power to arrest the suspected offender be not held exclusive to the Officers specified in Secs. 41 to 43 of the Act there can be to investigations carried on by two different agencies one under the Act and the other by the ordinary Police it is therefore clear from the observations that the Head Constable who exercised the powers was not authorised under the Act and therefore the search was without any authority and inviolation of the provisions even though the offence was held cognizable. It is clear that the provisions of Sec. 43 were not considered by the learned Judge. Even the provisions of Sec. 74 N. D. P. S. Act providing for transitional powers are also not considered. It is clear that the provisions of Sec. 43 were not considered by the learned Judge. Even the provisions of Sec. 74 N. D. P. S. Act providing for transitional powers are also not considered. The matter was then taken in appeal to the Supreme Court and the Supreme Court by order dated 9/08/1988 in the Criminal Appeal observing that the High Court lost sight of the provisions of Sec. 74 of the Act and omitted to consider the said provisions though they were relevant for deciding whether the conviction was vitiated in the absence of compliance of Chapter V allowed the appeal and set aside the judgment by the High Court and remitted the matter to the High Court for disposal in accordance with law. It appears that before Their Lordships of the Supreme Court the learned Additional Solicitor General appearing for appellant contended that the High Court did not examine the merits of the matter but came to the conclusion in favour of the accused by accepting the contention that the procedure provided in Chapter V of the Act had not been complied with. It also appears to have been urged that the High Court further found that under the Act the offence has been made cognizable and when a special procedure for investigation has been provided it necessarily meant that unless the special procedure was followed there could be no investigation under the Act so as to end up in conviction in case the charge is made out. It was then observed by Their Lordships that : though learned Additional Solicitor General has challenged the view of the High Court on this score we find on substance in that contention. It was then observed by Their Lordships that : though learned Additional Solicitor General has challenged the view of the High Court on this score we find on substance in that contention. As discussed above the learned single Judge in the case of Karam Singh (supra) had set aside the judgment mostly on the ground that the Head Constable was not an authorised Officer under the Act and that observation appears to have been challenged before the Supreme Court and therefore Their Lordships of the Supreme Court observed that the provisions of Sec. 74 of the Act were lost sight of by the learned Judg e. Section 74 provides : 74 Transitional provisions :- Every Officer or other employee of the Government exercising or performing immediately before the commencement of this Act any powers or duties with respect to any matters provided for in this Act shall on such commencement be deemed to have been appointed under the relevant provisions of this Act to the same post and with the same designation as he was holding immediately before such commencement. As these provisions provided for the statutory appointment under the relevant provisions of N. D. P. S. Act it was necessary for the High Court to consider the provisions and the powers and authority of the Head Constable taking action for the cognizable offence and therefore it appears that Their Lordships remitted the case for consideration of the said provisions of the Act and the authority of the Head Constable. It also appears that Their Lordships of the Supreme Court made the said observation with regard to the powers of the Head Constable. From the observations therefore it cannot be called out that except want of authority or power to take action for search seizure and arrest the provisions of Secs. 41 42 and 43 N. D. P. S. Act are such mandatory that violation of which would vitiate the proceedings even without establishing any prejudice to the accused or miscarriage of justice and. therefore the conviction is bad. ( 32 ) VARIOUS High Courts have expressed diverse views on the mandatory nature of the procedural provisions of the N. D. P. S. Act and exercised vitiating the conviction on that ground. therefore the conviction is bad. ( 32 ) VARIOUS High Courts have expressed diverse views on the mandatory nature of the procedural provisions of the N. D. P. S. Act and exercised vitiating the conviction on that ground. The Delhi High Court in RICHCHPAL V. STATE 1989 DRUGS CASES 97 considering the provisions of Sec. 42 providing for reducing the information in writing observed that there was some sort of urgency for making immediate arrangement for apprehending the accused and therefore even though there was lapse in not reducing the secret information in writing it did not vitiate the recovery effected from the accused. Relying on the observation of the Supreme Court in RADHA KISHAN V. STATE OF UTTAR PRADESH AIR 1963 SC 822 KAMALABAI JETHAMAL V. STATE OF MAHARASHTRA AIR 1962 SC 1189 and KHANDU SONU DHOBI and ANR. V. STATE OF MAHARASHTRA AIR 1972 SC 958 and extracting the relevant observations of Their Lordships of the Supreme Court the learned Judge observed that even if certain statutory provisions are not complied with before effecting the seizure the seizure does not become invalid on that score alone. The learned Judge did not agree with the view expressed in Hakam Singh (supra) that if the mandatory provisions of the N. D. P. S. Act are not complied with then the charge against the appellant must fail and expressed inability to agree with the broad proposition of law laid down in that judgment observing that the Court must consider the facts of each case in order to determine whether failure of prosecution to comply with any particular provision of N. D. P. S. Act has the effect of creating any doubt regarding the prosecution case or not. There cannot be say mechanical application of law to the facts of the case. The salutary provisions introduced into the N. D. P. S. Act contained in Secs. 41 to 55 are not to be obviously ignored by the Courts or by the prosecution but these provisions have to be kept in view only to see whether the prosecution case set up is truthful or not or there arises any doubt in respect of the prosecution case for non-compliance of any of the provisions of N. D. P. S. Act. . We are in respectful agreement with the observations by the learned Judge. . We are in respectful agreement with the observations by the learned Judge. ( 33 ) BOMBAY High Court Panaji Bench (Goa) in ABDUL SATTAR V. STATE 1989 0 DC 50 while expressing the view that even if the provisions of Secs. 41 to 58 of N. D. P. S. Act are mandatory and were not complied with hold that this procedural infirmity would not by itself vitiate the conviction of the appellant. The only question that remains to be determined is whether the son-compliance with the said provisions have caused any prejudice to the appellant. The answer to this question is manifestly in the negative the Court held and observed that : we indeed do not see and the learned counsel for the appellant was unable to satisfy and show us in what manner the omission In recording in writing the information received and in reporting it to the superiors could have and in the facts of this case where the recovery is proved to be genuine prejudiced the appellant. ( 34 ) IN JAYAPALAN V. STATE 1989 0 DC 106 the Delhi High Court considering the provisions of Sec. 42 observed that in the case where the information was taken down by the officer in writing but the copy was not produced before the shown during the trial the provisions of Sec. 42 had not been shown to have been complied with. It was however observed that there may be cases where it may become impracticable to comply with the provisions of Sec. 42 of the Act. On facts it was held that the offence was not proved beyond shadow of doubt. ( 35 ) IN BHAJAN SINGH V. STATE OF RAJASTHAN 1988 0 DRUGSCASES 94 The Punjab and Haryana High Court relying on KARAM SINGH V. STATE OF PUNJAB (SUPRA) observed that the provisions of Secs. 41 42 43 50 51 and 55 of the Act have been held to be mandatory and contravention thereof vitiates the investigation and trial. With due exercised respect we are not in a position to agree with such bread proposition of law. Similar view is expressed in HARBHAJAN SINGH V. STATE OF HARYANA 1988 0 DRUGSCASES 81. ( 36 ) IN NAND LAL V. STATE OF RAJASTHAN. With due exercised respect we are not in a position to agree with such bread proposition of law. Similar view is expressed in HARBHAJAN SINGH V. STATE OF HARYANA 1988 0 DRUGSCASES 81. ( 36 ) IN NAND LAL V. STATE OF RAJASTHAN. 1968 0 DRUGSCASES 44 UMRAV V. STATE 1989 0 DC 39 in SHANTI LAL V. STATE OF RAJASTHAN 1989 0 DC 283 and in STATE V. JAGMALA RAW 1989 0 DC 169 were the cases in which the officers exercising the power of seizure and search under Sec. 42 of the N. D. P. S Act were not authorised by the State Government and therefore the accused exercised were acquitted. ( 37 ) IN SIVAKUMAR ALIAS KUMAR ALIAS SUGUMAR V. STATE. 1989 0 DC 285 a learned single Judge of the Madras High Court while considering the provisions of Secs. 41 to 43 of the N. D. P. S. Act observed that the officers authorised under the said Secs. 41 and 42 can only exercise the powers of seizure arrest etc. and no other Police Officer even though the offence is a cognizable offence. Referring to Sec. 74 of the Act. the learned Judge observed that it is a transitional provision and meant for a limited period. It is clear that the learned Judge has considered the provisions of Sec. 74 as a transitory exercised provision and not transitional provision. Transitory provision is a provision for a temporary period while transitional means changing over to another form or passage from one State subjects set of circumstances to another. ( 38 ) IN view of the discussion above it is clear that the view of exercised several High Courts is that if the Officer exercising the powers of seizure arrest etc. under the Act is not empowered either under jurisdiction and violative of the mandatory provisions and vitiates the investigation and trial. Even though we may be in broad agreement with that view we do not express our view on that point as the Division Bench of this High Court in Aslambhai (supra) after considering the relevant provisions in Secs. under the Act is not empowered either under jurisdiction and violative of the mandatory provisions and vitiates the investigation and trial. Even though we may be in broad agreement with that view we do not express our view on that point as the Division Bench of this High Court in Aslambhai (supra) after considering the relevant provisions in Secs. 41 42 43 37 53 and 57 of the N. D P. S. Act and Sec. 4 Criminal Procedure Code expressed the view that the offence is a cognizable offence and therefore investigation is to be carried out in accordance with the provisions of the Code of Criminal Procedure and there is no question of following any other procedure than the procedure prescribed in the Code. It is observed: in view of these sections it is apparent that considering the seriousness of the offence the legislature thought that apart from Investigation by the police under exercised the Criminal Procedure Code some other Officers mentioned in Secs. 41 42 43 and 53 be empowered to discharge certain duties as specified therein But this does not mean that a Police Officer who is investigating the offence under the Act is not required to follow the procedure prescribed under the Criminal Procedure Code He has to investigate in accordance with the provisions of the criminal Procedure Code. To the other Officers limited powers are given. Under Sec. 53 the Central Government os the State Government as the case may be is entitled to invest any Officers of the department mentioned therein with the powers of an Officer in charge of Police Station for the investigation of the offences under the Act From the aforesaid discussion it would be clear that if the competent Police Officer has Investigated the offence under the Act there is no question of folloexercised wing any procedure other than the procedure prescribed under the Criminal Procedure Code. As the view is expressed by the Division Bench of this High Court judicial propriety requires that in case we do not agree with the view reference should be made to a larger Bench. Even though we have reservations. As the view is expressed by the Division Bench of this High Court judicial propriety requires that in case we do not agree with the view reference should be made to a larger Bench. Even though we have reservations. we do not express any view regarding the observations by the Division Bench as it is not necessary for us to consider and decide that point in the present case as we hold that the Investigating exercised Officer concerned was authorised to investigate the offence and seize the contraband. ( 39 ) CONSIDERING the Provisions of Secs. 37 and 51 of the Act we are of the view that the offence under the Act is a cognizable offence. ( 40 ) REFERRING to the provisions of Sec. 50 N. D. P. S. Act it is submitted that the respondent should have been informed that if at all he desired he may be taken to the nearest Gazetted Officer of the Departments specified in Sec. 42 or to the nearest Magistrate and in the instant case the prosecution has not led any evidence for that end therefore the proceedings vitiate Section 50 provides that in case the Officer who is authorised under Sec. 42 is about to search any person under the provisions of Sec. 41 Sec. 42 or Sec. 43 such Officer should if such person to requires take such person to the Gazetted Officer of the Departments specified in Sec. 42 or to the nearest Magistrate As provided in sub-sec. (2) in case such requisition is made the Officer can detain such person till he is taken to the Gazetted Officer or a Magistrate. The Gazetted Officer or the Magistrate if he does not see any reasonable ground for the search may discharge the person but otherwise shall direct the search to be made. This Section provides for the additional safeguard for the personal search probably with a view that the authorised Officer may not misuse the power. The person who is to be searched has however to require the authorised Officer to take him to the nearest Gazetted Officer of the Department mentioned in Sec. 42 or to the nearest Magistrate. If no such requisition is made it is not necessary for the authorised Officer to take such person tn the Gazetted Officer or the nearest Magistrate. The person who is to be searched has however to require the authorised Officer to take him to the nearest Gazetted Officer of the Department mentioned in Sec. 42 or to the nearest Magistrate. If no such requisition is made it is not necessary for the authorised Officer to take such person tn the Gazetted Officer or the nearest Magistrate. The Section does not specifically provide that such person should be informed by the authorised Officer that it is his right to he taken to the Gazetted Officer or to the Magistrate nor does it impose any obligation or duty on such Officer to inform such person. In absence of any such provision imposing the duty on the authorised Officer to inform the person who is to be searched it cannot be said that the Officer is bound to inform of such right of tie person to be searched much lass it can be said that in case such person is not exercised reminded of his right breach of any statutory provision is committed vitiating the investigation and proceedings As no specific provision is made imposing the duty on the authorised Officer to inform the person to be searched of his such right it cannot be said that in case no such information is given any breach is committed by such Officer or any mandatory provision is violated As such the Act does not provide for any such mandatory provision and therefore not informing such person about his right would not amount to committing breach of the provisions of the statute much less the mandatory provisions of the statute. If such person is not informed no illegality can be said to have been committed by the authorised Officer nor that would vitiate the investigation or the proceedings. In STATE OF HIMACHAL PRADESH V. SUDERSHAN KUMAR 1989 CRI. LJ 1412 1989 DRUGS CASES 188 after referring the provisions of Sec. 50 (1) of the N. D. P. S. Act the learned Judges proceeded on to observe that the rationale behind this provision is manifest. A search before a Gazetted Officer or a Magistrate would impart much more authenticity and credit worthiness to the proceeding. It would verily. strengthen the Prosecution. Thus there is no conceivable reason why a designated Officer should shirk from affording a real opportunity to the person concerned to avail of his right if he so desires. A search before a Gazetted Officer or a Magistrate would impart much more authenticity and credit worthiness to the proceeding. It would verily. strengthen the Prosecution. Thus there is no conceivable reason why a designated Officer should shirk from affording a real opportunity to the person concerned to avail of his right if he so desires. But for it. this valuable right would become illusory and a farce. In fact the designated Officer should as far as practicable make the offer in question to the person in the presence of two independent and respectable witnesses of the locality. If he fails to do so ones would be on prosecution to prove that association of such witnesses was not possible on the facts and circumstances of a particular case. This provision thus cannot but be regarded as mandatory and violation thereof per se would be fatal to the prosecution case. We are not in a position to agree and endorse the provisions make it obligatory on the Authorised Officer to make the offer to the person to be taken before specified Gazetted Officer or Magistrate and in case no such information is given or offer is made the mandatory provisions are violated making per sc fatal the prosecution case A discussed above the statute toes not provide for that and therefore it cannot be said that any such obligation is imposed on such Officer. It is however clear that in case the person to be searched himself asserts for being taken to the Gazetted Officer or the nearest Magistrate it is the obligatory duty on the authorised Officer to take such person to such Gazetted Officer or the Magistrate and in case it is not done that would create A shadow of doubt in the search and that may be one of the strongest grounds for not accepting the evidence of the witnesses about the recovery of the prohibited articles from such person. It may however per se not be fatal to the prosecution case unless it is established or proved or the Court has reason believe that prejudice is caused to the accused or it has resulted in miscarriage of justice Referring to the facts of the instant case no recovery is made from the person of the accused but huge quantity of charas is recovered from the rickshaw. In our view provisions of Sec. 50 are applicable only in the case in which search of the person is to be made and not the search of the conveyance 40 Mr. Malik learned Advocate for the respondent contends that the provisions of Secs. 52 and 55 are not complied with inasmuch as the Police Station Officer has not put his seal on the muddamal packets and subsequently the muddamal articles were taken to the Dudheshwar Crime Branch Police Chowky from where P. S. I. Vaghela has taken the same to the Forensic Science Laboratory Under Sec. 52 the Officer arresting the person has to inform him of the grounds of arrest and in case warrant is issued by the Magistrate and on the strength of the warrant such person is arrested then such person should be forwarded to the Magistrate Sub-sec. (3) of Sec. 52 provides that every person arrested and articles seized under sub-sec. (2) of Sec. 41 or Sec. 42 or Sec. 43 or Sec. 44 shall be forwarded without unnecessary delay to she Officer in charge of the nearest Police Station or the Officer empowered under Sec. 53 Under sub-sec. (4) of Sec. 52 the authority or the Officer to whom any person or article is forwarded under sub-sec. (2) or sub-sec. (3) shall with all convenient despatch take such measures as may be necessary for the disposal according to law of such person or article So far as dealing with such person is concerned the Officer in charge of the Police Station may either secure police custody remand or send such person to judicial custody under the provisions of the Criminal Procedure Code. So far as the articles which are produced before the police station Officer is concerned. So far as the articles which are produced before the police station Officer is concerned. they are required to be dealt with a provided in Sec. 55 of the Act Section 55 provides that the Officer in charge of the Police Station has to take charge of and keep in safe custody pending the orders of the Magistrate all articles seized under the Act within the local area of that Police Station and allow any Officer who may accompany such articles to the Police Station or who may be deputed for the purpose to affix his seal to such articles or take samples of and from them and all samples so taken are also required to be scaled with the seal of the Officer in charge of the Police Station Sections 52 and 55 N. D. P. S. Act deal with the situations after the seizure and arrest. The articles are required to be sealed by the Police Station Officer with a view that they may be protected properly and may not be tampered with. In case such articles are produced before the Officer in charge of the Police Station the Officer producing such articles should affix his seal to such articles or take samples of such articles. In case the samples are taken such samples are also required to be sealed with the seal of the Officer in charge of Police Station. The seal of the Officer in charge of the Police Station is to be affixed only on the samples which are taken. It is not necessary that in case the articles are brought and delivered to the Officer in charge of the Police Station by the authorised Officer seizing such goods then again the second seal of the Officer in charge of the Police Station should be affixed on it Even when the articles are produced the Police Station Officer has to allow the Officer seizing the articles or the Officer deputed by such Officer to affix his seal. In case the Officer seizing the articles has affixed the seal at the place of seizing the articles or at any other place and after that the articles are delivered to the Officer in charge of the Police Station it will not be necessary for the Officer in charge of the Police Station to again affix the same section 55 does not provide for any such procedure Submission of Shri Malik that a second seal should have been affixed deserves to be repelled . ( 41 ) REVERTING to the facts of the instant case it is clear that the Police Inspector Vishen was in charge of the Police Station and he had affixed the seal and the sealed articles were produced before the Police Station Officer who took charge of them. The evidence of Police Station Officer Shri Arjansinh is clear on this point and does not require any discussion. It is however submitted by Shri Malik learned Advocate for the respondent that from the evidence of Head Constable Arjansinh and P. S. I. B. S. Vaghela it is clear that subsequently from Dariapur Police Station muddamal articles were taken to the Dudheshwar Crime Branch Police Chowky by Jamadar Narsinhbhai. From the evidence of P. S. I. B. S. Vaghela it is clear that he had handed over the muddamal and specifically 11 packets containing charas in sealed condition to Arjansinh who was the Police Station Officer Dariapur Police Station. On 15/01/1988 he personally carried all the 11 packets produced by him from the Dudheshwar Police Chowky and took them to the Forensic Science Laboratory and delivered them along with the forwarding letter and secured the receipt for that. It is clear from the evidence of P. S. I. Vaghela that the articles were taken in sealed condition and were delivered in the same condition. In the endorsement on the receipt also there is no mention that the articles were not in sealed condition. Shri Malik submitted that Jamadar Narsinhbhai who had carried the muddamal from Dariapur Police Station to Dudheshwar Crime Branch Police Chowky was not examined by the prosecution. As such it was not necessary to examine Narsinhbhai as it is clear that ail the muddamal articles were taken to Dudheshwar Crime Branch Police Chowky and subsequently P. S. I. Vaghela had secured them in sealed condition and handed over to the Forensic Science Laboratory. As such it was not necessary to examine Narsinhbhai as it is clear that ail the muddamal articles were taken to Dudheshwar Crime Branch Police Chowky and subsequently P. S. I. Vaghela had secured them in sealed condition and handed over to the Forensic Science Laboratory. There was no charges for tampering with the muddamal articles. ( 42 ) P. S. I. Vishen had written a letter to the Director Forensic Science Laboratory on the same day and immediately after seizure and stated in it that 11 sealed packets were sent to the Forensic Science Laboratory for ascertaining as to whether they contained charas. Spacimen of the seal was also sent along with the letter. The endorsement by the Forensic Science Laboratory is that ail the 11 packets were received by that office on 15/01/1988 There is no endorsement that any of the packets was not in proper seal. It is clear from the evidence that the packets were sealed and slip bearing signature of panch-witness was kept and the seal of Inspector of Police Dariapur was affixed. The Forensic Science Laboratory therefore received all the packets intact and with proper seal. Shri Malik learned Advocate for the respondent referred the STATE OF RAJASTHAN V. DAULAT RAM AIR 1980 SC 1314 in which opium was seized and after that it had changed various hands and ultimately after more then one month the samples were taken by the Police to the office of the Superintendent of Police Jodhpur for onward transmission to the Public Analyst but the samples were not accepted by the office of the Superintendent of Police as the labels were not in order. The prosecution had not taken the Court into confidence in disclosing as to the reasons why the office of the Superintendent of Police refused to take the samples. It was held that as the labels were not in order it was necessary for the prosecution to prove that the seals were still intact. In the light of that it was observed by Their Lordships of the Supreme Court that some of the witnesses who had handed the samples should have been examinet. No principle of law is laid down by the Supreme Court that even in the case when the parcel were handed over intact with seal the witnesses who even carried the parcel should be examined by the prosecution. No principle of law is laid down by the Supreme Court that even in the case when the parcel were handed over intact with seal the witnesses who even carried the parcel should be examined by the prosecution. That judgment therefore is not relevant to the facts of the instant case. ( 43 ) MR. Malik learned Advocate for the respondent asserting that the provisions of Sec. 57 N. D. P. S. Act were not complied with submitted that oven though it was obligatory to make a full report of all the particulars of such arrest or seizure within 48 hours to the immediate superior official no such report in writing was sent by Police Inspector Vishen to his immediate official superior. Police Inspector Vishen in his cross-examination stated that he had net sent such information in writing but had orally reported to his immediate superior the Superintendence of Police about it. Section 56 N. D. P. S. Act does not provide that the report in writing should be submitted within 48 hours. Report as used in context means make official or formal statement inform against. As Sec. 57 provides for making full report of all the particulars of such arrest and seizure it is desirable to make a report in writing but in absence of specific provision making it obligatory to submit report in writing it cannot be held that the report should be in writing liven if it is held that the report is required to be submitted in writing non-compliance of submitting such report under Sec 57 N. D. P S. Acts by itself would not vitiate the investigation and the trial. The provisions of Sec. 57 should not be considered such mandatory non-compliance of which should be fatal to the prosecution as such report is to be submitted subsequent to the arrest and seizure and in most of the cases after filing of the complaint and producing the muddamal before the Police Station Officer. It appears that suck provision is Trade in Sec. 57 N. D. P. S. Act with a view to see that the Police Officers or other Officers who may be authorised to investigate under Sec. 52 N. D. P S. Act may not misuse the power and subsequently create evidence. It appears that suck provision is Trade in Sec. 57 N. D. P. S. Act with a view to see that the Police Officers or other Officers who may be authorised to investigate under Sec. 52 N. D. P S. Act may not misuse the power and subsequently create evidence. Normally the seizure is made under the Panchnama and in present of parch-witnesses and after that the complaint is filed and First information Report is lodged before the Police Station Officer and the muddamal is also normally produced before the Police Station Officer. After the entries are made in the Official record it may not be easily possible to tamper with the evidence or create evidence. The very fact that the First Information Report is made is sufficient security and after that there may not be any possibility for changing the record. In such circumstances it should be held that even though compliance of that Section is necessary non-compliance of it will not be fatal to the prosecution till it is established that it has resulted in miscarriage of justice or prejudice is caused to the accused. When the panchnama is prepared and the F. I. R. is lodged and the entry is made in the Police Station Diary or the relevant record and the muddamal is produced before the Police Station Officer it cannot be accepted that any prejudice is caused to the accused merely because report was not made to the immediate superior in writing within 48 hours. ( 44 ) HIMACHAL Pradesh High Court in case of Sudarshan Kumar (supra) while holding the provisions of Sec. 57 mandatory observed that non-compliance of it would result into failure of the prosecution case. With due respect we are net in a position to accept the broad proposition of law. In OUr view the prosecution may fail for noncompliance of provisions of Sec. 57 N. D. P. S. Act only in case miscarriage of justice or prejudice to the accused are established 44 Mr. G. D. Bhatt learned Additional Public Prosecutor asserts that even if the procedural provisions in Secs. In OUr view the prosecution may fail for noncompliance of provisions of Sec. 57 N. D. P. S. Act only in case miscarriage of justice or prejudice to the accused are established 44 Mr. G. D. Bhatt learned Additional Public Prosecutor asserts that even if the procedural provisions in Secs. 41 to 58 N. D. P. S. Act are considered mandatory the non-compliance of such provisions would not be fatal to the prosecution case of conviction would not vitiate till it is established that prejudice is caused to the accused or it has resulted into miscarriage of justice in submission of Mr. Bhatt special procedure is provided in Chapter V N. D. P. S. Act for various reasons including the protection to the accused as well as to the Officers who enter in the premises conveyance or enclosures and carry out the said Mr. Bhatt also submitted that similar provisions are made in Secs. 100 and 165 Code of Criminal Procedure non-compliance of which is not considered fatal to the prosecution or vitiating the trial or conviction. Refuting the contention of Mr. Bhatt Mr. Malik learned Advocate for the appellant referring the judgment in Sudarshan Kumar (supra) asserted that the non-compliance of all the procedural provisions is fatal to the investigation trial and conviction. As discussed above the Bombay High Court and the Himachal Pradesh High Court have expressed divergent views on that. We are of the view that the provisions under Secs. 41 42 49 and 55 N D P S Act regarding authorisation to an officer only are such mandatory that non-compliance of which may vitiate the trial or the proceedings and ultimately conviction it the seizure or arrest is made by the person who is not duly authorised to do it and such got is without any authority or power If the Officers who are not authorised under the relevant provisions of the Act either to seize search or arrest exercise that power the very set should be considered as not authorised by law and therefore ab initio ineffective and unauthorised. Any further proceedings after that also should be considered as ineffective and per se vitiating the trial and conviction However the other procedural provisions even though may be mandatory should not be considered as such that the non-compliance per se would be fatal to the prosecution or vitiate the proceedings and conviction in case the trial results into conviction and it should be established that non-compliance of such other procedural provisions resulted in miscarriage of justice or prejudice to the accused ( 45 ) MR. G. D. Bhatt learned Additional Public Prosecutor in support of the above contention referred several judgments of the Supreme Court some of which are referred by the Bombay High Court in Abdul Sattar (supra) In RADHA KISHAN V. STATE OF UTTAR PRADESH AIR 1963 SC 822 provisions of Secs. 103 and 165 Criminal Procedure Code were contravened but that was not considered fatal to the prosecution Their Lordships of the Supreme Court observed : it may be that whore the provisions of Secs. 103 and 165 Criminal Procedure Code are contravened the search can be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure But beyond those two consequences no further consequence ensues and the seizure of the articles is not vitiated. Some view is reiterated in STATE OF MAHARASHTRA V. NATWARLAL DAMODARDAS SONI AIR 1950 SC 593. ( 46 ) ). H. N. RISHBUD and ANR. V. STATE OF DELHI AIR 1955 SC 196 MUNNALAL V. STATE OF U. P. AIR 1964 SC 28 MUNI LAL V. DELHI ADMINISTRATION 1971 (2) SEC 48 KHANDU SONU DELHI and ANR. V. STATE OF MAHARASHTRA AIR 1972 SC 958 AND A. C. SHARMA V. DELHI ADMINISTRATION AIR 1973 SC 913 were cases under the Prevention of Corruption Act in which certain procedure required to be followed under the Act eras not followed and the observation by Their Lordships of the Supreme Court are that any irregularity or even illegality committed in the course of the investigation does not by itself affect the legality of the trial by on otherwise compotent Court unless miscarriage of justice has been caused. It is therefore necessary for the prosecution to establish the miscarriage of justice or prejudice to the accused. It is therefore necessary for the prosecution to establish the miscarriage of justice or prejudice to the accused. In the instant case no such miscarriage of justice or prejudice to the accused is established or even can be inferred. ( 47 ) SHRI Malik learned Advocate for the respondent submits that seized material is not proved to be charas and the test is not property carried out by the Forensic Science Laboratory. Referring to page 813 of the Book Forensic Science in Criminal Investigation and Trials by Dr. B. R. Sharma Second Edition it is submitted that the main chemical constituents of charas (Hashish) are:1 Cannabidiolic acid. 2 Cannabidiol 3 Cannabinil and 4 Tetrahydrocannabinol. and that in the reports of the Chemical Analyser and also the Biology Division these constituents are not clearly stated. It is clear from the reports that the contents of all the exhibits are charas. The reports are admitted by consent. As such there is no reason not to accept the reports in which it is specifically stated that muddamal articles contained charas. That submission therefore cannot be accepted. Shri Malik also submitted that the weight was some what different when it was sent to the Forensic Science Laboratory. There is no remarkable difference in the weight. It is clear that when the charas was seized it was weighed by the ordinary scales and it is quite possible that when charas vas weighed in the Forensic Science Laboratory it may be by perfect scales. It is true that when the samples were sent to the Biology Division the weight differed but it may be quite possible that the entire bulk must not have been sent as some of it was required for the test by the Chemical Analyser. No grievance for that was made before the learned trial Judge. Apart from that we do not find any substance in that contention. No grievance for that was made before the learned trial Judge. Apart from that we do not find any substance in that contention. ( 48 ) BEFORE ending we extract the observations by Their Lordships of the Supreme Court in DURAND DIDIER V. CHIEF SECRETARY UNION TERRITORY OF GOA pointing out the object and purpose of N. D. P. S. Act: 24 With deep concern we may point out that the organised activities of the underworld and the cisndestine smuggling of notice drugs and psychotropic substance into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public particularly the adolescent and students of both sexes and the menace has assumed serious and alarming protections in the recent years Therefore in order to effectively control and eradicate this proliferating and becoming devastating menace causing deleterious effects and deadly impact on the society as a whole the Parliament in its wisdom has made effective provisions by introducing this Act 81 of 1985 xxx xxx xxx ( 49 ) IN the result the acquittal by the learned trial Judge should be set aside and the appellant should be convicted for the offence punishable under See. 20 (b) (ii) N. D. P. S. Act and Sec. 66 (1) (b) of the Bombay Prohibition Act. As the respondent himself was using the vehicle be should not he convicted for the offence punishable under Sec. 25 of the Act even though charged Offence under Sec. 25 N. D. P. S. Act is committed only when the conveyance is permitted knowingly to be used by the owner or the person having control of the vehicle by any other person for the purpose of commission of the offence punishable under the Act. The rickshaw was not allowed to be used by the other person. but the respondent himself was using the rickshaw ar d therefore the respondent has not committed the offence under the provisions of Sec. 25 of the Act. ( 50 ) ACCORDINGLY the appeal is allowed to the aforesaid extent and the acquittal by the learned trial Judge is set aside and the appellant is convicted for the offences punishable under Sec. 20 (b) (ii) N. D. P. S. Act and Sec. 66 (1) (h) of the Bombay Prohibition Act. ( 51 ) HEARD the respondent Abdulrasid Ibrahim Mansuri and Mr. ( 51 ) HEARD the respondent Abdulrasid Ibrahim Mansuri and Mr. G. D. Bhatt learned Ad Public Prosecutor on sentence. The respondent submitted that he is a poor man having small children and there is no other earning member in his family. ( 52 ) LEARNED Addl. Public Prosecutor Mr. Bhatt submitted that considering the huge quantity of charas maximum punishment should be awarded to the respondent. It is true that huge quantity of charas was recovered from the possession of respondent but considering the circumstances. we think that the ends of justice would meet if the minimum sentence provided under Sec 209 N. D. P. S. Act is awarded. ( 53 ) THE respondent is convicted for the offences punishable under Sec. 200 (b) Narcotic Drugs and Psychotropic Substances Act 1985 and sentenced to rigorous imprisonment for ten years and fine of Rs. one lac in defanlt rigorous imprisonment for one year. ( 54 ) EVEN though the respondent is convicted for the offence punishable under Sec. 66 (b) Bombay Prohibition Act no separate sentence is awarded for the said offence. .