JUDGMENT : B.J. Shethna, J. The appellant-accused have challenged in this appeal the judgment and order of conviction and sentence dated 14.6.1988 passed by the learned Additional City Sessions Judge, Ahmedabad, Court No. 16, in Sessions Case No. 49 of 1988, whereby the appellant are convicted for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, for short, "the Narcotic Drugs And Psychotropic Substances Act", and each of them is sentenced to suffer RI for ten years and to pay a fine of Rs. 1,00,000/-, in default to undergo RI for further two years. They have also been convicted for offences punishable under sections 66(b) and 66(a)(e) of the Bombay Prohibition Act. But no separate order of sentence has been passed for the said offences. They have been given set off for the period during which they remained as under trial prisoners. The Muddamal, 'Charas' and the muddamal currency notes seized from the accused have been forfeited to the State Government. 2. It is the prosecution case that on 18th October, 1986, PSI Rathod and PSI Rana received information that accused No. 1, Saiyad Mohammad Saiyad Umar Saiyad, is doing the business of selling Charas in Vagharivad, opposite Renbasera. Alongwith them, other police officers SRP personnel and as also other members of the State Prohibition Squad joined the raid. On receiving such information at about 15.30 hours, they called Panchas and divided themselves in his groups. They reached the place where the accused were selling 'Charas' and cordoned accused No. 1 alongwith Mustaq Ahmad Abdul Gaffor and Isaq Mohammad Noormohammad Shaikh, accused Nos. 2 and 3. On being searched, 55 grams of 'Charas' were found from the accused No. 1 and 10 grams of 'Charas' were found from accused Nos. 2 and 3. PSI Rathod lodged complaint against all the three accused with Kalupur Police Station. After completing the investigation, the accused were charge-sheeted and subsequently they were tried before the learned Additional City Sessions Judge, Ahmedabad for the offences punishable under sections 20 and 29 of the Narcotic Drugs And Psychotropic Substances Act and sections 66(b) and 65(a)(e) of the Bombay Prohibition Act. 3. Mr. After completing the investigation, the accused were charge-sheeted and subsequently they were tried before the learned Additional City Sessions Judge, Ahmedabad for the offences punishable under sections 20 and 29 of the Narcotic Drugs And Psychotropic Substances Act and sections 66(b) and 65(a)(e) of the Bombay Prohibition Act. 3. Mr. Mehta, learned counsel for the appellant firstly contended that under section 50 of the Narcotic Drugs And Psychotropic Substances Act, the accused were required to be informed by the police about their right to be searched in presence of a Gazetted Officer or a Magistrate and in this case, there is no evidence on the record to show that either PSI Rathod or PSI Rana had informed the accused about their such a right and, therefore, the accused are required to be acquitted as there is a clear breach of section 50 of the Narcotic Drugs And Psychotropic Substances Act committed in this case by the police. However, Mr. K.V. Shelat, learned Addl. P.P. vehemently opposed this submission made by Mr. Mehta on the ground that this plea was not taken up by the accused before the Trial Court and the accused have not proved their case that in this case breach of section 50 of the Narcotic Drugs And Psychotropic Substances Act is committed by bringing material evidence on the record to that effect. He submitted that the question whether the accused were informed about their such right by the police is a matter of evidence. Therefore, it is a question of fact which cannot be permitted to be raised by the accused for the first time in this appeal before this Court. He further submitted that section 54 of the Narcotic Drugs And Psychotropic Substances Act clearly provides that the burden is on the accused to prove that they have not committed any such offence and the accused have failed to prove that they have not committed any offence. In the alternative, he submitted that to inform the accused about their right to be searched in presence of a Gazetted Officer or a Magistrate is an official act of the police officer and, therefore, this Court should raise a presumption under section 114(e) of the Evidence Act to that effect. 4. There is lot of substance in the submission made by Mr. Shelat, learned Addl. 4. There is lot of substance in the submission made by Mr. Shelat, learned Addl. P.P. that the accused are not entitled to raise the plea regarding breach of the mandatory provision of section 50 of the Narcotic Drugs And Psychotropic Substances Act for the first time before this Court in this appeal. Mr. Shelat was also right in submitting whether the accused were informed about their right to be searched in presence of a Gazetted Officer or a Magistrate is a matter of evidence and, therefore, it is a question of fact which cannot be gone into for the first time by this Court in this first appeal. Mr. Shelat was also right in submitting that if the accused take up such a plea then they have to make it good by bringing material evidence on record as provided under section 54 of the Narcotic Drugs And Psychotropic Substances Act. Once it is proved that the 'Charas' a narcotic drug has been found from the possession of the accused then the burden is on the accused to prove that the 'Charas' was not found from their possession. In this case, the plea viz. that the mandatory provision or section 50 of the Narcotic Drugs And Psychotropic Substances Act has been committed breach of by the police officer is taken up for the first time in this appeal. This point was not even taken in the memo of appeal by the accused. This has been taken for the first time at the time of hearing of this appeal in view of the recent pronouncement of the Supreme Court in State of Punjab v. Balbir Singh, JT 1994 (2) SC 108, wherein the Supreme Court has held the provisions of sections 41, 42, 43 and 50 of the Narcotic Drugs And Psychotropic Substances Act to be mandatory in nature. Whether the accused were informed by the police about their right to be searched in presence of a Gazetted Officer or a Magistrate is a matter of evidence. It is a question of fact and, in our opinion, it cannot be gone into for the first time in this first appeal by this Court. If the accused take up such a plea, then they have to prove it by bringing material evidence on record before the Trial Court. It is a question of fact and, in our opinion, it cannot be gone into for the first time in this first appeal by this Court. If the accused take up such a plea, then they have to prove it by bringing material evidence on record before the Trial Court. Under section 54 of the Narcotic Drugs And Psychotropic Substances Act, it is to be presumed by the Court that the accused have committed the offence under Chapter IV of the Narcotic Drugs And Psychotropic Substances Act in respect of any narcotic drugs or psychotropic substance, unless and until contrary is proved by the accused. In this case the accused have miserably failed to prove contrary to the prosecution case and, therefore, in our opinion, the learned trial Judge has rightly convicted the accused for the offence for which they were charged. 5. Mr. Mehta, learned counsel for the accused, heavily relied upon paras 17 and 22 of the judgment in Balbir Singh's case (Supra), wherein the Supreme Court has observed that : "17. . . . . . The words, "If the person to be searched so desires" are important. One of the submissions is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search would be conducted. In the context in which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused. T o afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. T o afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right. . . . . . 22. . . . . . . . . . . . . . . . . . When such is the importance of a right given to an accused person in custody in general, the right by way of safeguard conferred under section 50 in the context is all the more important and valuable. Therefore it is to be taken as an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a Gazetted Officer or a Magistrate. Thus the provisions of section 50 are mandatory." (Emphasis supplied) 6. In nutshell we may say that both PSI Rathod and PSI Rana have stated almost each and everything in their evidence regarding the information received by them, calling for the Panchas, going to the place of offence, searching the accused and on search finding of muddamal 'Charas' of 55 grams from accused No. 1 and 10 grams each from accused Nos. 2 and 3. What is not stated by them before the Court is that they had informed the accused about their right under Section 50 of the Narcotic Drugs And Psychotropic Substances Act to be searched in presence of a Gazetted Officer or a Magistrate. In our opinion, Mr. Shelat, learned APP was right in submitting that the Court has to raise presumption that PSI Rathod and PSI Ranna must have informed the accused about their such a right to be searched in presence of a Gazetted Officer or a Magistrate before the search as it was an official act. But Mr. Mehta, learned counsel for the accused, vehemently submitted that this cannot be considered to be an official act and, therefore, this Court cannot raise a presumption under section 114(e) of the Evidence Act. In support of his submission, Mr. Mehta has relied upon the decisions of the Bombay High Court in Purshottam Harjivan v. Emperor, AIR 1946 Bom. But Mr. Mehta, learned counsel for the accused, vehemently submitted that this cannot be considered to be an official act and, therefore, this Court cannot raise a presumption under section 114(e) of the Evidence Act. In support of his submission, Mr. Mehta has relied upon the decisions of the Bombay High Court in Purshottam Harjivan v. Emperor, AIR 1946 Bom. 492; The State v. Azizkhan, AIR 1956 Bom. 680 and Usman Haiderkhan v. The State of Maharashtra, 1991 Cr.LJ 232, Mr. Mehta has relied upon a decision of the Supreme Court in Sawal Das v. State of Bihar, AIR 1974 SC 778 and an unreported decision of a Division Bench of this Court. (Coram : M.K. Shah and D.C. Gheewala, JJ- a they then were) in Criminal Appeal Nos. 64 and 65 of 1977,. D/d. October 3, 1979. 7. The decision of the Supreme Court in Sawal Das's case (Supra) has no application to the facts and circumstances of the case for the simple reason that the Supreme Court was considering the provisions of section 114(g) of the Evidence Act and not Section 14(e). Therefore, we have not thought it fit to discuss in detail that judgment. However, we may state that a Division Bench of this Court in Kamleshkumar Babulal Patel v. State of Gujarat & Anr., 1981 GLH 98 (= 22 GLR 404) had an occasion to consider the judgment of the Bombay High Court in Purshottam Harjivan's case (Supra) and also the unreported judgment of the Division Bench of this Court in Criminal Appeals No. 64 and 65 of 1977,. decided 3rd October, 1979. Of course, that was a case under the Prevention of Food Adulteration Act wherein certain provisions of the said Act and the Rules were held to be mandatory by the Supreme Court. The question in that case was whether a presumption could be raised under Section 114(e) of the Evidence Act regarding the official Act of a Food Inspector using knots of twine or thread were covered by means of sealing wax, bearing the impression of his seal or not. The question in that case was whether a presumption could be raised under Section 114(e) of the Evidence Act regarding the official Act of a Food Inspector using knots of twine or thread were covered by means of sealing wax, bearing the impression of his seal or not. After considering several decisions of this Court as well as of the Bombay High Court and of the Supreme Court, this Court held in Kamleshkumar's case (Supra) that it was and official act and though the Food Inspector had not deposed in his evidence before the Court about such a act, the Court can raise presumption under Section 114(e) of the Evidence Act, and the presumption was raised. Thus, there is no doubt, in our mind, that to inform the accused about his right to be searched in presence of a Gazetted Officer or a Magistrate under Section 50 of the Narcotic Drugs and Psychotropic Substances Act by the police officer before search is an official act. Therefore, if we come to the conclusion that the appellant-accused were entitled to raise the plea regarding breach of mandatory provision of Section 0 of the Narcotic Drugs And Psychotropic Substances Act for the first time before this Court in this first appeal and were not required to discharge the burden under Section 54 of the Narcotic Drugs And Psychotropic Substances Act by proving contrary, even then without any hesitation, we would have raised a presumption under Section 114(e) of th Evidence Act to the effect that both the police officers viz. Mr. Rathod and Mr. Rana must have informed all the accused before their search about their right to be searched in presence of a Gazetted Officer or a Magistrate, which was their official act. To inform the accused about his right to be searched in presence of a Gazetted Officer or a Magistrate under Section 50 of the Narcotic Drugs And Psychotropic Substances Act is an official act. Therefore, ordinarily it is not deposed by police officer before the Court that he had informed the accused about his right to be searched in presence of a Gazetted Officer or a Magistrate under Section 50 of the Narcotic Drugs And Psychotropic Substances Act since it is to be presumed. And, therefore, very probably even no such question is put by the accused to the police officer in his cross-examination. And, therefore, very probably even no such question is put by the accused to the police officer in his cross-examination. We may further say that in cases under the Narcotic Drugs And Psychotropic Substances Act, it is the duty of the Court to raise presumption under Section 114(e) of the Evidence Act, if the police officer has not deposed in his evidence before the Court and if the Court does not raise such a presumption, then it would be failing in its duty. 8. Mr. Mehta next contended that the prosecution has failed to prove its case that the muddamal articles ('Charas') which were seized from the accused were the same which were analysed by the Senior Scientific Assistant. Mr. Mehta tried to point out the discrepancy in the evidence of PSI Rathod, who had packed the muddamal which was recovered by him from the possession of accused No. 1 in plastic bag which was not found by Mr. Patel, Senior Scientific Assistant, who had analysed the muddamal and submitted his report. It is true that Mr. Patel has not deposed before the Court about the muddamal was received by him in any such plastic bag. However, Mr. Patel has categorically stated that he had received all the three muddamal articles Mark 1, 2 and 3 respectively in a sealed condition and Mark 1 packet, which was seized from accused No. 1 had two polyethylene bags with a paper slip bearing the signature of the Panchas and PSI Rana were found to be intact. It may be that PSI Rathod might have committed a mistake while deposing before the Court that he had packed the muddamal article in a plastic bag which was seized by him from the accused No. 1. Merely because the muddamal article seized from accused No. 1 was not found in a plastic bag, as deposed by PSI Rathod, would not be fatal to the prosecution case, particularly when Mr. Patel has deposed that all the three muddamal packets received by him were in sealed condition. 9. Mr. Mehta then submitted that there was a gross delay of more than five months in forwarding the muddamal samples and, therefore, a possibility of tampering with the muddamal samples cannot be ruled out and therefore, the benefit of doubt should be given to the accused. 9. Mr. Mehta then submitted that there was a gross delay of more than five months in forwarding the muddamal samples and, therefore, a possibility of tampering with the muddamal samples cannot be ruled out and therefore, the benefit of doubt should be given to the accused. It is true that the muddamal 'Charas' was seized from the accused on 18.10.1986, and it was sent to the Forensic Scientific Laboratory on 23.3.1987 after about more than five months. But, in this case, the prosecution has examined Head Constable Arjunsinh Visaji (PW. 6, Ex. 23), who has stated on oath that all the three muddamal samples were in his custody and they were intact and in a sealed condition till they were forwarded to the Forensic Scientific Laboratory. His evidence is not at all challenged in the cross-examination by the accused. Mr. Patel, who had analysed the muddamal samples, has clearly deposed that all the three muddamal samples were received by him in a sealed condition and they were found fit for the purpose of analysis and, in fact, they were analysed by him on 10.6.1987, that is, after three months from the date of receipt. Thus, though there was a delay in sending the muddamal samples for the purposes of analysis and, there was a further delay of more than three months in analysing the same, it would not be fatal to the prosecution because the muddamal, which was sent for analysis was of such a nature which could not have been soiled or deteriorated by lapse of time. Therefore, there was no possibility of the muddamal articles being tampered with in any manner. Therefore, this submission of Mr. Mehta is also rejected. 10. Mr. Mehta next contended that the evidence of PSI Rathod is not reliable when he has deposed that he was not knowing the names of the accused and he simply identified the accused from the clothes put on by accused No. 1 and, therefore, benefit of doubt should be given to the accused. It is true that PSI Rathod had received the information regarding accused No. 1 only as stated by Mr. Rathod and he had only information about the clothes put on by accused No. 1. It is true that PSI Rathod had received the information regarding accused No. 1 only as stated by Mr. Rathod and he had only information about the clothes put on by accused No. 1. But at the same time he had definite information that a particular place one person dressed in a particular clothes was selling 'Charas' and, therefore, after calling the Panchas he went with the raiding party to the place of offence where two other accused viz. accused Nos. 2 and 3 wee also seen with accused No. 1 and, therefore, all the three of them were searched and 'Charas' was found from their possession also and ,therefore, they all were arrested. Going through his evidence, we are quite satisfied that Rathod's evidence is totally reliable and trustworthy. He has stood the test of cross-examination and nothing substantial is forthcoming from his evidence. He is an honest officer and, therefore, only he has stated in his evidence that he had received the information regarding accused No. 1 only. Nothing could have prevented him from stating in the FIR itself that he had received the information against all the three accused, particularly when he had not reduced the same in writing. But he has not done so and deposed before the Court actually what had happened. There could not have been any difficulty for an intelligent police officer like Mr. Rathod with his experience to apprehend the accused persons on the description of the clothes put on by them without any other details and, in fact, in this case, PSI Rathod was successful in trapping accused No. 1 alongwith two other accused who were found selling 'Charas' with accused No. 1. 11. Next submission of Mr. Mehta is that the Panchas have not supported the prosecution case and, therefore, this Court should not rely upon the uncorroborated testimony of Shri Rathod and Shri Rana, who are police officers. It is very difficult for us to accept this submission of Mr. Mehta Merely because the Panchas have not supported the prosecution, it does not mean that the evidence of the two police officers Mr. Rathod and Mr. Rana should be discarded. If we discard their evidence, the resultant effect would be that the Court would be acquitting such accused at the grave risk to the law and order situation, and the public interest involved in the matter. Rathod and Mr. Rana should be discarded. If we discard their evidence, the resultant effect would be that the Court would be acquitting such accused at the grave risk to the law and order situation, and the public interest involved in the matter. Under such circumstances, the judicial pragmatism warrants that if the Police Officer is otherwise found to be quite dependable, then merely because the Panchas do not support, that should not be mechanically made a ground to discard his evidence. At best, their evidence is required to be closely scrutinised and after careful consideration, if their evidence is otherwise found to be trustworthy and reliable, there should not be any difficulty for the Court to accept the evidence of police officers. As stated earlier, we have found the evidence of PSI Rathod trustworthy and reliable. Similarly, PSI Rana's evidence is also reliable. He has also stated in the same manner as deposed by Shri Rathod. Nothing substantial has come out in his cross and, therefore, we do not see any reason to take a different view of the matter than the view which is taken by the learned Judge of convicting the accused. 12. In view of the above discussion, we do not see any substance or merit in this appeal. Hence this appeal fails and is dismissed. Appeal Dismissed.