S. M. SONI, J. ( 1 ) APPELLANTS-ORIGINAL accused in Sessions Case No. 264 of 1991 have preferred this appeal. This appeal is filed against the judgment and order of conviction under Sec. 20 (b) (ii) of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and Sec. 66 (1) (b) of the Bombay Prohibition Act. Each of the appellants was awarded R. I. for 10 years and a fine of Rs. 1 lac, in default R. I. for one year under NDPS Act. Each of the appellants was also awarded sentence of R. I. for three months and fine of Rs. 500. 00 in default R. I. for one month under prohibition Act. It was also ordered that substantive sentences shall run concurrently. This judgment and order of the Additional City Sessions Judge, Ahmedabad dated 21-1-1992 is under challenge in this appeal. ( 2 ) BRIEF facts leading to the prosecution of the appellants/accused are as under :- pirmohmadkhan Nathekhan Pathan P. W. 7, Police Inspector Vigilance Squad in Crime Branch, Ahmedabad City, received an information at about 22-00 hours on 6-5-1991 from his informant that there is a house of one Sirajbaba in Patwa sheri situated near Electric pole No. PK 791. The same is hired by one Nasir. Said nasir, by engaging servants, is keeping in his possession Charas and is dealing therein. On receipt of this information, P. W. 7 made an entry of the said information in police Station Diary, being Entry No. 17 of 1991. He then called for two panchas, who agreed to act as panch witnesses. On arrival of the panchas, he prepared a preliminary panchnama and proceeded towards the place of information. The raiding party went in Police vehicle No. P-29 as well as rickshaw towards Bhadrakali Goddess temple and then Three Gates. They stopped their vehicles there, proceeded on foot towards the premises to be raided. On reaching near the premises to be raided, P. W. 7 shouted from ground floor for Nasir and one person came down from that premises disclosed by the informant. On enquiry, that person disclosed his name as Dhanpal Singh (accused No. 1 ). They stopped their vehicles there, proceeded on foot towards the premises to be raided. On reaching near the premises to be raided, P. W. 7 shouted from ground floor for Nasir and one person came down from that premises disclosed by the informant. On enquiry, that person disclosed his name as Dhanpal Singh (accused No. 1 ). He belonged to Jhansi in U. P. P. W. 7 informed accused No. 1 that raid is to be carried out in the premises and if he wants to search him/complainant and other members of the raiding party, he may do so. Accused no. 1 declined. Thereafter, the raiding party together with accused No. 1 went upstairs and went to the room on the right hand side, which was half-opened with a light on. There were other four persons inside the room and on asking their names, they disclosed their names, who are now accused Nos. 2 to 5/appellant Nos. 2 to 5 in this appeal. The person of each was searched and an amount of Rs. 1,386. 60 in all was found. Thereafter, the room which had area of 15 ft. x 8 ft. was minutely searched and on search of the room, a plastic bag (Minia bag) was found having isi mark and other writing, which was not legible. On opening the same, it contained three plastic bags, which were then taken out and on opening the same, it contained a substance in the shape of pencil pieces and stick. On smelling the same, it was found to have a smell of Charas. By this time, P. W. 7 had sent for an expert from forensic Science Laboratory, who also had arrived by that time and on preliminary test, he opined that substance to be Charas. By the time, P. W. 7 also had sent for a person for weighing the substance and a goldsmith was called, who came, weighed the substance and certified the same. The substance weighed 2. 270 kgs. On completion of the panchnama of seizure, a complaint was filed with Karanj Police Station, where necessary documents of panchnama and other documents were submitted with the police Station Officer, along with narcotic substance seized. The substance weighed 2. 270 kgs. On completion of the panchnama of seizure, a complaint was filed with Karanj Police Station, where necessary documents of panchnama and other documents were submitted with the police Station Officer, along with narcotic substance seized. On offence being registered, the investigation was carried out by one Balubhai Abbesinh Zala P. W. 12, who, on completion of the investigation, entrusted it to one P. S. I. J. J. Chudasma, who submitted the charge-sheet against the accused in the Court of Metropolitan magistrate, Ahmedabad, who, in his turn, committed the case to the Court of Session, ahmedabad. Learned Additional City Sessions Judge, Ahmedabad framed charge against the accused to which they pleaded not guilty. Prosecution led necessary evidence to prove the guilt of the accused and on completion of the evidence and on hearing the parties, i. e. , prosecution as well as defence, the learned Judge held the appellants-accused guilty of the offences referred hereinabove and passed the impugned order. ( 3 ) THIS judgment and order of conviction is challenged by the learned Counsel appearing for the appellants on the grounds, namely : (i) that search and seizure carried out by P. W. 7 is in contravention of and/or without due compliance of the provisions of Secs. 41, 42, 43 and 50 of NDPS Act; said provisions being mandatory one, the whole of the trial is vitiated and the order of conviction is bad; (ii) that the investigation carried out is dishonest one and, therefore, the trial is vitiated; (iii) that the evidence led by the prosecution cannot be the basis for conviction inasmuch as the evidence is only of the Police Officer and though independent witnesses were available, some are not examined and who have been examined have not supported the case of the prosecution; (iv) that the prosecution has failed to prove conscious possession of all or one or some of the appellants; and (v) that the substance seized is not a Narcotic substance. ( 4 ) WE will take last contention first, as, in our opinion, if the substance found is not a Narcotic substance, then there is no evidence to prosecute the appellants. Possession even if established will not constitute any offence and appellants are liable to be acquitted. Mr. ( 4 ) WE will take last contention first, as, in our opinion, if the substance found is not a Narcotic substance, then there is no evidence to prosecute the appellants. Possession even if established will not constitute any offence and appellants are liable to be acquitted. Mr. Keshwani, learned Counsel, has, to show that prosecution has failed to prove that substance found from the possession of the appellants is a Narcotic substance (Charas), relied on the evidence of Gauridatt Dayanidhi Sharma, P. W. 11, expert from Forensic Science Laboratory (FSL for short ). Mr. Keshwani contended that from the opinion of that expert, the substance cannot be said Charas as defined in clause (iii) of Sec. 2 of NDPS Act. Mr. Keshwani further contended that the expert has not stated that the substance is the resin obtained from cannabis plant or is a concentrated preparation and resin known as hashish oil or liquid hashish. What is opined by expert vide his report at Ex. 45 is that the contents of the exhibits are found to be Charas. According to Mr. Keshwani, this opinion cannot be said to be full and complete one to say it a Charas as per the definition of NDPS act. Therefore, it cannot be said that the substance found is a narcotic substance charas as defined in Sec. 2 (iii) of NDPS Act, contended by Mr. Keshwani. ( 5 ) TO appreciate this contention, it is necessary to refer to the definition of narcotic substance known as charas as defined in clause (iii) of Sec. 2 of NDPS act. Clause (iii) of Sec. 2 reads as under :-"2 (III) cannabis (hemp) means- (a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish; (b) xxx (c) xxx"clauses (b) and (c) are not relevant for our purpose and, therefore, they are not reproduced herein. ( 6 ) RESULT of analysis by expert (Ex. 45) shows that all the 44 exhibits contained botanical material of cannabis species (charas ). Thus, the expert has opined that the substance sent to him is charas. The question is whether charas found by expert is a charas as defined in NDPS Act. Under Sec. 293 Criminal Procedure Code, opinion of the expert is admissible in evidence. 45) shows that all the 44 exhibits contained botanical material of cannabis species (charas ). Thus, the expert has opined that the substance sent to him is charas. The question is whether charas found by expert is a charas as defined in NDPS Act. Under Sec. 293 Criminal Procedure Code, opinion of the expert is admissible in evidence. However, at the request of the defence counsel, the expert was presented for the cross-examination. Expert P. W. 11 has deposed as under :-". . . . . ABOVE samples were chemically analysed and I have opined that the same is charas. . . . . . . . . . . There is also report of botanical expert and on the basis of both the opinions, an opinion is given at Ex. 45". In the cross-examination, he has deposed that "it is true that I have carried out the tests shown in column 4. I have carried out those tests. There are no other tests. It is true that by Levin test, it cannot be conclusively said that the substance is charas. It is true that by doing Alkaline test, it cannot be conclusively said that the substance is charas. By the test known as para aminon phenol test, it can be conclusively said that the substance is charas. In the presence of tetrahedro canabina, para aminon phenol test will give a positive result. Said element is in the seeds of female plant. It is true that by thin layer chromatography test, presence of charas only can be known. Cannabinoid, canabi acid, tetrahedra cannabis and others are the resins of charas. It is true that para aminon phenol test shows the presence of above materials and, therefore, I have come to the conclusion that the substance is charas. In a botanical test, it is found that the substance contained cannabis species". In view of this evidence, it is clear that positive result of para aminon phenol test shows presence of tehrahydro cannabis. In view of this finding when the expert has opined that the substance is charas, the question is how it is not a charas as defined in clause (iii) of Sec. 2 of NDPS Act as contended by Mr. Keshwani. In view of this finding when the expert has opined that the substance is charas, the question is how it is not a charas as defined in clause (iii) of Sec. 2 of NDPS Act as contended by Mr. Keshwani. Clause (iii) of Sec. 2 of NDPS Act says that cannbis means charas and it is a separated resin in whatever form, whether crude or purified obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish. When the substance found to contain cannabis species and when it stood a positive test of para aminon phenol test and thin layer chromatography test, it is a charas as defined in clause (iii) of Sec. 2 of NDPS Act. It is not necessary for the expert to further state in his opinion that it is separated resin of cannabis, which is known as charas. Opining that the substance is a charas itself conveys that it is a separated resin in whatever form whether crude or purified obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish. It is not necessary to state in the opinion that it is separated resin of cannabis plant as contended by Mr. Keshwani. What is required to be proved by the prosecution is whether the substance is cannabis or not and it is proved beyond reasonabe doubt that substance sent to FSL for analysis is cannabis/charas as defined in clause (iii) of Sec. 2 of NDPS Act. Thus, we do not find any substance in this contention of mr. Keshwani. ( 7 ) LEARNED Counsel for the appellants, relying on the judgment in the case of shamjibhai Dhanjibhai v. State of Gujarat, (1973) XIV GLR 237, contended that the prosecution has failed to prove that narcotic substance found is charas as defined in Sec. 2 (iii) of NDPS Act. According to Mr. Keshwani, it is the duty of the prosecution to bring on record scientific data showing that the substance is a narcotic substance as defined in NDPS Act. In the case of Shamjibhai (supra), the Court, was dealing with the offence under the Bombay Prohibition Act, wherein under sec. 2 (30) of that Act, opium is defined. According to Mr. Keshwani, it is the duty of the prosecution to bring on record scientific data showing that the substance is a narcotic substance as defined in NDPS Act. In the case of Shamjibhai (supra), the Court, was dealing with the offence under the Bombay Prohibition Act, wherein under sec. 2 (30) of that Act, opium is defined. Definition of opium given there reads as under :" "opium" means - (a) the capsules of the poppy (Popover Somniforum L) whether in their original form or cut or crushed or powdered and whether or not the juice has been extracted therefrom; (b) the spontaneously coagulated juice of such capsules which has not been submitted to any manipulation other than those necessary for packing and transport; and (c) any mixture with or without neutral materials of any of the above forms of opium; but does not include any preparations containing not more than 0. 2 per cent of morphine, or a manufactured drug as defined in Sec. 2 of the Dangerous Drugs Act, 1950. "in that case, the prosecution was not able to prove that the substance found with the appellant was opium as per Sec. 2 (30) of the Act. From the mere fact that morphine found exceeded the limit, one could not necessarily conclude that the substance found in possession of the appellant was opium within Sec. 2 (30) of the act. It is further observed that it was the duty of the prosecution to bring on record scientific data in the evidence of the chemical analyser to enable the Court to form an opinion that the substance found was opium within the meaning of Sec. 2 (30) of the Act, possession of which was prohibited under the Act. In the present case, there is evidence of P. W. 11 and his opinion, Ex. 45, which is full and complete one as it also discloses the methods applied for the test, the prosecution has proved beyond reasonable doubt that substance found contained cannabis. We, therefore, do not find any substance in the contention raised by Mr. Keshwani that the substance found is not narcotic substance as defined in Sec. 2 (iii) of NDPS Act. ( 8 ) THIS brings us to consider the next contention raised by the learned Counsel for the appellants. It is contended by Mr. We, therefore, do not find any substance in the contention raised by Mr. Keshwani that the substance found is not narcotic substance as defined in Sec. 2 (iii) of NDPS Act. ( 8 ) THIS brings us to consider the next contention raised by the learned Counsel for the appellants. It is contended by Mr. Keshwani that the search carried out by p. W. 7 is without due compliance of and in contravention of the provisions of Secs. 41, 42 43 and 50 of NDPS Act. Mr. Keshwani contended that the officer has not taken down the information in writing as required under Sec. 41 (2) or 42 (1) of NDPS Act; that he has not recorded reasons before entering into the premises between sunset and sunrise disclosing the grounds of his belief to enter the premises without search warrant or authorisation as required in proviso to Sec. 42 (1) of NDPS act; and that the officer has not informed the accused persons of their right of being searched in presence of either a gazetted officer or a Magistrate as required under sec. 50 (1) of NDPS Act. These provisions of Secs. 41, 42 and 50 are mandatory and violation thereof vitiates the trial as held by Supreme Court in the case of State of Punjab v. Balbir Singh, 1994 (3) SCC 299 : AIR 1994 SC 1872 . The accusedappellants are entitled to be acquitted, contended by Mr. Keshwani. ( 9 ) BEFORE we discuss this contention, it may be relevant to state that the officer who has carried out raid in this case is Police Inspector. It is brought to our notice that by Notification dated 15-6-1987 issued by the Social Welfare Department, being no. GH-L-14-NDS-1087-10577 (i)-M under Narcotic Drugs and Psychotropic substances Act, 1985, the Government of Gujarat has empowered for the purpose of Sec. 41 (2), the following officers of the State Government, namely :"1. All officers of the Police Department of and above the rank of Inspector of police posted in any part of the State of Gujarat. 2. xxxx 3. xxxx"it may be relevant to refer to another notification also, as it refers to the officers empowered under Sec. 42 (1) of NDPS Act. All officers of the Police Department of and above the rank of Inspector of police posted in any part of the State of Gujarat. 2. xxxx 3. xxxx"it may be relevant to refer to another notification also, as it refers to the officers empowered under Sec. 42 (1) of NDPS Act. The said notification is dated 15-6- 1987 issued by Social Welfare Department under Narcotic Drugs and Psychotropic substances Act, 1985, being No. GH-L-15-NDS-1087-10577 (ii)-M. Under the said notification, the State of Gujarat in exercise of powers conferred by sub-sec. (1) of Sec. 42 of NDPS Act, has invested the undermentioned officers within the limit of their respective jurisdiction, with the power of entry, search, seizure, detention and arrest without warrant between sunrise and sunset, exercisable under the said sec. 42, provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. Such officers are :" (1) xxxxx (2) All police officers of and above the rank of a Head Constable in the State of gujarat. (3) xxxxx"the notification further provides in clause (2) that if officer takes down any information in writing under sub-sec. (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. ( 10 ) KEEPING in mind this authorisation by the State of Gujarat under NDPS act, we will now proceed to appreciate the contentions raised by Mr. Keshwani, learned Advocate for the appellants. ( 11 ) MR. Keshwani, learned Advocate for the appellants, contended that P. W. 7 on receipt of the information has not recorded the same in writing and has also not sent the same to his superior officers as required in Sec. 42 of the Act. Section 41 of the NDPS Act reads as under :-"41. ( 11 ) MR. Keshwani, learned Advocate for the appellants, contended that P. W. 7 on receipt of the information has not recorded the same in writing and has also not sent the same to his superior officers as required in Sec. 42 of the Act. Section 41 of the NDPS Act reads as under :-"41. Power to issue warrant and authorisation :- (1) A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence, punishable under Chapter IV, or for the search, whether by day or by night, of any building, conveyance or place at 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 article which may furnish evidence of the commission of such offence is kept or concealed. (2) Any such officer of gazetted rank of the departments of Central Excise, narcotics, Customs, Revenue Intelligence or any other department of the Central government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer of the Revenue, Drugs control, Excise, Police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any person has committed an offence punishable under chapter IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place, may authorise any 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 whether by day or by night or himself arrest a person or search a building, conveyance or place. (3) The officer to whom a warrant under sub-sec. (3) The officer to whom a warrant under sub-sec. (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-sec. (2) shall have all the powers of an officer acting under Sec. 42. "relying on sub-sec. (3) of Sec. 41, Mr. Keshwani contended that all the provisions of Sec. 42 are applicable to and required to be followed by the officer, who exercises his power under sub-sec. 42 (1 ). Sec. 42 reads as under :-"42. (2) shall have all the powers of an officer acting under Sec. 42. "relying on sub-sec. (3) of Sec. 41, Mr. Keshwani contended that all the provisions of Sec. 42 are applicable to and required to be followed by the officer, who exercises his power under sub-sec. 42 (1 ). Sec. 42 reads as under :-"42. Power of entry, search, seizure and arrest without warrant or authorisation :- (i) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the department of Central Excise, Narcotics, Customs, Revenue Intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the Revenue, Drugs, Control, Excise, Police or any other department of a State government as is empowered in this behalf by general or special order of the State government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset, - (a) enter into and search any such building, conveyance or place; (b) in any case of resistance break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and (d) detain and search, and, if he thinks proper arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance : provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds in his behalf. (2) Where an officer takes down any information in writing under sub-sec. (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. " ( 12 ) TO appreciate the contentions raised by the appellants, it would be necessary to refer to the scheme of NDPS Act with respect to arrest, search and seizure. The supreme Court in the case of State of Punjab v. Balbir Singh ( AIR 1994 SC 1872 ) in para 4 has extracted relevant provisions which reads as under :-"the NDPS Act was enacted in the year 1985 with a view to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotrophic substances to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances to implement the provisions of the International conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith. Secs. 1 to 3 in Chapter I deal with definitions and connected matters. The provisions in Chapter II deal with the powers of the Central Government to take measures for preventing and combating abuse of an illicit traffic in Narcotic drugs and to appoint authorities and officers to exercise the powers under the Act. The provisions in Chapter iii deal with prohibition, control and regulation of cultivation of coca plant, opium, poppy, etc. and to regulate the possession, transport, purchase and consumption of poppy straw, etc. Now Chapter IV deals with various offences and penalties for contravention in relation to opium poppy, coca plant, narcotic drugs and psychotropic substances and prescribes deterrent sentences. The provisions of Chapter V deals with the procedure regarding the entry, arrest, search and seizure. Chapter V-A deals with forfeiture of property derived from or used in illicit traffic of such drugs and substances. The provisions of Chapter VI deals with miscellaneous matters. We are mainly concerned with Secs. 41, 42, 43, 44, 49, 50, 51, 52 and 57. The provisions of Chapter V deals with the procedure regarding the entry, arrest, search and seizure. Chapter V-A deals with forfeiture of property derived from or used in illicit traffic of such drugs and substances. The provisions of Chapter VI deals with miscellaneous matters. We are mainly concerned with Secs. 41, 42, 43, 44, 49, 50, 51, 52 and 57. Under Sec. 41, certain classes of magistrates are competent to issue warrants for the arrest of any person whom they have reason to believe to have committed any offence punishable under Chapter IV or for search of any building, conveyance or place in which they have reason to believe that any Narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed is kept or concealed. Section 42 empowers certain officers to enter, search, seize and arrest without warrant or authorisation. Such officer should be 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 an officer of similar superior rank of the Revenue, Drugs Control, Excise, Police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government. Such officer, if he has reason to believe from personal knowledge or information taken down in writing that any offence punishable under chapter IV has been committed, he may enter into and search in the manner prescribed thereunder between sunrise and sunset. He can detain and search any person if he thinks proper and if he has reason to believe such person to have committed an offence punishable under Chapter IV. Under the proviso, such officer may also enter and search a building or conveyance at any time between sunset and sunrise also provided he has reason to believe that search warrant or authorisation cannot be obtained without affording opportunity for concealment of the evidence or facility for the escape of an offender. But before doing so, he must record the grounds of his belief and send the same to his immediate official superior. But before doing so, he must record the grounds of his belief and send the same to his immediate official superior. Section 43 empowers such officer as mentioned in Sec. 42 to seize in any public place or in transit, any narcotic drug or psychotrophic substance in respect of which he has reason to believe that an offence punishable under Chapter IV has been committed and shall also confiscate any animal or conveyance alongwith such substance. Such officer shall also detain and search any person whom he has reason to believe to have committed such offence and can arrest him and any other person in his company. Section 44 merely lays down that provisions of Secs. 41 to 43 shall also apply in relation to offences regarding coca plant, opium, poppy or cannabis plant. Under Sec. 49, any such officer authorised under Sec. 42, if he has reason to suspect that any animal or conveyance is, or is about to be used for the transport of any narcotic drug or psychotrophic substance, can rummage and search the conveyance or part thereof, examine and search any goods in the conveyance or on the animal and he can stop the animal or conveyance by using all lawful means and where such means fail, the animal or the conveyance may be fired upon. Then comes Sec. 50. Since sufficient emphasis has been laid on this section, we shall extract the same in full. It reads as under : 50. Conditions under which search of persons shall be conducted :- (1) When any officer duly authorised under Sec. 42 is about to search any person under the provisions of Sec. 41, Sec. 42 or Sec. 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Sec. 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the Magistrate referred to in sub-sec. (1 ). (3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person, but otherwise shall direct that search be made. (4) No female may be searched by anyone excepting a female. (1 ). (3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person, but otherwise shall direct that search be made. (4) No female may be searched by anyone excepting a female. "this provision obviously is introduced to avoid any harm to the innocent persons and to avoid raising of allegations of planting or fabrication by the prosecuting authorities. It lays down that if the person to be searched so requires, the officer who is about to search him under the provisions of Secs. 41 to 43, shall take such person without any unnecessary delay to the nearest gazetted officer of any of the departments in Sec. 42 or to the nearest Magistrate. One of the questions raised is that what meaning is to be given to the words "if the person to be searched so requires. " Do they cast a duty upon the officer about to make the search to intimate such person that if he so requires, he would be taken before the nearest gazetted officer or the nearest Magistrate for the purpose of making search in their presence or it is for such person to make such a request on his own without being informed by the officer ? We shall consider this question at a later stage. Sec. 51 is also important for our purpose. It reads as under :"51. Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures :- The provisions of the Code of Criminal Procedure, 1973 (II of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act to all warrants issued and arrests, searches and seizures made under this act. " ( 13 ) THIS is a general provision under which the provisions of the Code of criminal Procedure (cr. P. C. for short) are made applicable to warrants, searches, arrests and seizures under the Act. Sec. 52 lays down that any officer arresting a person under Secs. " ( 13 ) THIS is a general provision under which the provisions of the Code of criminal Procedure (cr. P. C. for short) are made applicable to warrants, searches, arrests and seizures under the Act. Sec. 52 lays down that any officer arresting a person under Secs. 41 to 44 shall inform the arrested person all the grounds for such arrest and the person arrested and the articles seized should be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued or to the officerin- charge of the nearest Police Station, as the case may be, and such Magistrate or the officer to whom the articles seized or the person arrested are forwarded may take such measures necessary for disposal of the person and the articles. This section thus provides some of the safeguards within the parameters of Art. 22 (1) of the constitution of India. In addition to this, as Sec. 57 further requires that whenever any person makes arrest or seizure under the Act, he shall within forty-eight hours after such arrest or seizure make a report of the particulars of arrest or seizure to his immediate official superior. This section provides for one of the valuable safeguards and tries to check any belated fabrication of evidence after arrest or seizure. Section 57 reads as under :-"57. Report of arrest and seizure.- Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report, of all the particulars of such arrest or seizure to his immediate official superior. " ( 14 ) KEEPING in mind the scheme of NDPS Act, it is clear that Sec. 41 captioned as Power to issue warrant and authorisation, Sec. 41 (1), Sec. 41 (2) and Sec. 42 (1) of NDPS Act provide for the officers who can investigate into the offences under chapter IV of NDPS Act. " ( 14 ) KEEPING in mind the scheme of NDPS Act, it is clear that Sec. 41 captioned as Power to issue warrant and authorisation, Sec. 41 (1), Sec. 41 (2) and Sec. 42 (1) of NDPS Act provide for the officers who can investigate into the offences under chapter IV of NDPS Act. Sec. 41 (1) provides that the Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf may issue a warrant for the arrest of any person whom he has reason to believe to have 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 other article which may furnish evidence of the commission of such offence is kept or concealed. Thus, Sec. 41 (1) authorises magistrate to issue warrant for the purpose of investigation of an offence punishable under Chapter IV of NDPS Act. This, in our opinion, is the first type of officers. We may make it clear that the officer to whom the warrant for the arrest or search is issued for the purpose of investigation may be authorised by such warrant to exercise his power to search, by day or by night. Thus, the empowered Magistrate may issue warrant of arrest or search for either day or for night. Such authorisation is issued by the empowered Magistrate for whom it is presumed that he has reason to believe either from personal knowledge or information given to him that an offence punishable under Chapter IV of NDPS Act is committed. The person authorised by such warrant can act under the warrant as per the limitations prescribed in the warrant, particularly as to execution thereof either by day or by night. If it is for a day, he cannot exercise by night and if it is for night, he cannot exercise for the day. ( 15 ) SECTION 41 (2) empowers the officers of the gazetted rank of the Departments of the Central Government or of the State Government. If it is for a day, he cannot exercise by night and if it is for night, he cannot exercise for the day. ( 15 ) SECTION 41 (2) empowers the officers of the gazetted rank of the Departments of the Central Government or of the State Government. The Departments of the central Government and the State Governments are referred to in Sec. 41 (2 ). If such officers of the gazetted rank has reason to believe from personal knolwedge or information given by any person and taken down in writing as to commission of an offence punishable under Chapter IV of NDPS Act, he has power to arrest a person or search a building, conveyance or place. Section 41 (2) does not impose any fetter or limitation on the power of such gazetted officer to investigate into the matter and search for either by day or night. He can do so either by day time or by night time. He is so authorised or empowered by the section itself. This officer under Sec. 41 (2) is also authorised to delegate his powers to his subordinate officer, who is superior in rank to a peon, sepoy or a constable. This delegation is not of absolute power which he has got under the section. He can delegate his power either for day or night. Thus, in view of the provisions of Secs. 41 (1) and 41 (2), in our opinion, the following officers can exercise power of investigation under NDPS act :- (i) The officer in whose favour a warrant is issued by a Magistrate referred to in Sec. 41 (1); (ii) The officer of gazetted rank of Departments of the Central Government or of the State Government empowered in this behalf by the concerned Government by general or special order; (iii) The officer who is authorised by such empowered gazetted officer of the department of the Central Government or the State Government. The power which can be exercised by the officer of gazetted rank as referred to in Sec. 41 (2) is an absolute power without any fetter as to time, place, etc. The power which can be exercised by the officer of gazetted rank as referred to in Sec. 41 (2) is an absolute power without any fetter as to time, place, etc. while the powers of investigation that may be exercised by an officer in whose favour the warrant is issued by the competent Magistrate as referred to in Sec. 41 (1) or one who is authorised/delegated by the officer of the gazetted rank under Sec. 41 (2) can exercise such powers with limitation or prescription that may be imposed. ( 16 ) WHEN a warrant is issued in favour of an officer by a competent Magistrate for the day time or the powers are delegated by the officer of the gazetted rank as referred to in Sec. 41 (2) and when the investigation is not over during the day time, should such officers return back to their officers who authorised them without further proceeding into the investigation or should they exercise powers by night time and if so, how such powers can be exercised by them, particularly when they are not authorised to exercise the same ? To meet with such exigency and see that the offender does not escape or evidence of commission of an offence under Chapter iv of NDPS Act is not concealed, the Legislature has taken care. For officers with limited power to search either by day or night the Legislature has provided proviso to Sec. 42 (1) to meet with such situation. The Legislature has, therefore, by providing sec. 41 (3) extended the applicability of Sec. 42 to those officers. By providing Sec. 41 (3), the Legislature had extended the powers of entry, search and seizure without warrant or authorisation as provided in Sec. 42 to officers referred to in Sec. 41 (1) and Sec. 41 (2 ). These powers are in addition to the powers conferred on such officers under Secs. 41 (1) and 41 (2 ). ( 17 ) SECTION 42 also provides with the power of investigation by the officers, who are superior in rank to peon, sepoy or constable of the Department of the Central government or of the State Government, who are empowered by such Government by general or special order. These officers under Sec. 42 are authorised to search, seize and arrest only between sunrise and sunset. These officers under Sec. 42 are authorised to search, seize and arrest only between sunrise and sunset. The powers of arrest, search and seizure are specified vide clauses (a) to (d) of Sec. 42 (1 ). As this section empowers the officer for arrest and search and seizure during sunrise and sunset, the proviso has empowered him to exercise those powers even after sunset and before sunrise provided he is not able to obtain either search warrant or authorisation for the night time without affording opportunity for the concealment of evidence or facility for the escape of the offender. Legislature by providing Sec. 41 (3) has empowered the officers who were authorised to act only for the day time while extending the application of the proviso to Sec. 42 (1) of NDPS Act. Thus, Sec. 42 (1) empowers officers above the rank of peon, sepoy and constable, but that power or authority under the Act is for day time and if necessity arises, that can be exercised during night time after recording grounds as contemplated in its proviso. Thus, on reading together Secs. 41 and 42, it is clear that the following officers are authorised to act and investigate into the offence punishable under Chapter IV of the NDPS act :- (i) Officers authorised by warrant issued by the competent Magistrate (vide sec. 41 (1) ); (ii) Officers of the gazetted rank of the Department of Central Government or State Government duly empowered either by the Central Government or the State government in this behalf by general or special order (vide Sec. 41 (2) ); (iii) Officers above rank of peon, sepoy or constable of the concerned Department authorised by officers of the gazetted rank referred to at serial No. 2 above (vide sec. 41 (2) ); (iv) Officers superior in rank to a peon, sepoy or constable of the Department of Central Government or State Government duly empowered in this behalf by Central or State Governments by general or special order (vide Sec. 42 (1) ). From amongst above four categories who can investigate into an offence punishable under Chapter IV of NDPS Act, officers of the gazetted rank referred to in Sec. 41 (2) only have a right to arrest a person or search a building, conveyance or a place by any time of day or night. From amongst above four categories who can investigate into an offence punishable under Chapter IV of NDPS Act, officers of the gazetted rank referred to in Sec. 41 (2) only have a right to arrest a person or search a building, conveyance or a place by any time of day or night. The officers who are delegates of such gazetted officers (vide Sec. 41 (2) ) and officers empowered under Sec. 42 (1) have limited power to investigate and they can only investigate during day time. Officers authorised by warrant vide Sec. 41 (1) can investigate into the matter as per the time specified in the warrant. Now, if the officers other than gazetted officers referred to in Sec. 41 (2) are required to search a premises between sunset and sunrise, proviso to Sec. 42 (2) is attracted for the officers referred to in Sec. 42 (1) and the same is further attracted vide Sec. 41 (3) for the officers referred to in Secs. 41 (1) and 41 (2), in case the situation so demands. ( 18 ) IN view of the provisions of Sec. 42 (1), it is clear that officer of the gazetted rank may also be covered under the empowering notification, but it is presumed, and it is the principle of administrative law, that if an officer has unlimited power under one section and limited power under another section, when he has to exercise power in respect of some act or omission, he will be exercising unlimited powers and not limited powers or powers with some fetter. It is, therefore, to be presumed that whenever an officer of gazetted rank if empowered by the Government under both the provisions, i. e. , under Secs. 41 (2) and 42 (1), is exercising power under ndps Act, he will be exercising the powers under Sec. 41 (2), which is an unlimited one, except where he specifically states that he is exercising powers under Sec. 42 (1), i. e. , limited powers or powers with fetter. Thus, it is clear from the above discussion that the officers referred to in Secs. 41 (1), 41 (2) and 42 (1) are not the same officers, but are different officers with qualified or unqualified powers. Thus, it is clear from the above discussion that the officers referred to in Secs. 41 (1), 41 (2) and 42 (1) are not the same officers, but are different officers with qualified or unqualified powers. Therefore, by provision of Sec. 41 (3) though all the powers of an officer acting under Sec. 42 can be exercised by them, the fetters under Sec. 42 in particular as to powers to arrest, search and seizure between sunset and sunrise are not attracted in the case of officer of the gazetted rank empowered under Sec. 41 (2) of NDPS Act. The same are attracted for the officers, who fall short of powers in view of the limited authorisation or specific warrant. ( 19 ) KEEPING this in mind, it is to be considered whether there is any substance in the contention of Mr. Keshvani that there is non-compliance of a mandatory provision of Sec. 50 (1) of NDPS Act. Mr. Keshwani has contended that not only the officer has not taken down the information in writing, but has not asked the accused as to whether they would like to be searched in presence of the gazetted officer or the Magistrate. Sec. 50 contemplates and imposes an obligation on the officers duly authorised under Sec. 42 to tell the accused person whether he would like to be searched in presence of gazetted officer of the Department mentioned in Sec. 42 or the Magistrate. As discussed above, officers referred to in Secs. 41 and 42 are different officers. They are not the same. Sec. 50 is attracted in case of a search by an officer duly authorised under Sec. 42. It is not attracted in search by officers under Sec. 41. Question is whether this provision of Sec. 50 (1) is attracted in the case of officers carrying out search under Sec. 41. The answer is supplied by Sec. 50 (3 ). It will be relevant to state that when an officer is authorised by warrant by a Magistrate, that officer is authorised by name by the Magistrate after application of mind on arriving at a conclusion that there is reason to believe that a person has committed an offence punishable under Chapter IV of NDPS Act. After having this reason in mind, the learned Magistrate authorises a particular person. After having this reason in mind, the learned Magistrate authorises a particular person. So far as authorisation by an empowered officer of a gazetted rank is concerned, he also after having reason to believe the commission of an offence by a person either from a personal knowledge or information given by any person and taken down in writing, authorises his subordinate, who is superior in rank to peon, sepoy or a constable of the concerned Department. He authorises such a person knowing full well as to whom he is authorising and also knowing full well whether he will be able to perform his job. Keeping this aspect in mind, if such officers of Sec. 41 are required to give an option to the person to be searched as to whether he would like to be searched in presence of a Magistrate or a gazetted officer, then it makes the said powers either of the Magistrate or the officer of the gazetted rank to authorise redundant one. Sec. 50 (3) provides that when a person to be searched is brought to a gazetted officer or a Magistrate, then such gazetted officer or Magistrate if he sees no reasonable ground for search, shall forthwith discharge the person. If such a gazetted officer or a Magistrate agrees that there is a reasonable ground to search, then there is no difficulty, but if he sees no reasonable ground for search and orders to discharge forthwith the person, then it creates not only an unwarranted situation, but an anomolous state of affair. If an officer who holds the warrant issued by the Magistrate takes a person under Sec. 50 (1) to a gazetted officer or the Magistrate for search and such gazetted officer or Magistrate sees no reasonable ground to search and discharges such person forthwith, would it not amount to sitting in appeal or review the Magistrates decision that he had reason to believe that such an offence is committed ? One Magistrate issues warrant after having reason to believe to have committed an offence and another Magistrate or a gazetted officer, who cannot be said to be judicially trained like a Magistrate, simply seeing the person to be searched or hearing the person to be searched or hearing the officer who brought such person to be searched, decides that he sees no reasonable ground for search and may discharge forthwith. Can it be said in this situation that the decision of the Magistrate to issue warrant was uncalled for ? Can it be allowed by a gazetted officer or a Magistrate to sit in appeal or a review of the reasons arrived at by the learned Magistrate before issuance of the warrant ? Such a situation must have been envisaged by the Legislature and despite that, if it has introduced such a provision, it should be read to avoid such embarrassing situation. The Legislature is presumed not to create anomalies; nor a provision be read to create an anomaly. Therefore, when the Legislature has made Sec. 50 for the officers duly authorised under Sec. 42, it cannot be stretched to say that it covers officers under Sec. 41 also. ( 20 ) QUESTION may arise as to why Sec. 41 is referred to in Sec. 50 (1) if officers under Sec. 41 are not to be covered under the provisions of Sec. 50 (1 ). Section 41, as referred to in Sec. 50 (1), is not referred with a view to refer to all the officers referred therein, but it is with respect to officers who may have to follow procedural part of search of any person under Sec. 42. Authorised officer under Sec. 41 (2) may exercise powers of search and seizure under Sec. 42 (1) in view of the provisions of Sec. 41 (3 ). This by itself does not make them officers under Sec. 42 (1 ). If he becomes an officer under Sec. 42, then he is again required to comply with the provision of Sec. 42 (1 ). An officer in whose favour the warrant is issued by the magistrate under Sec. 41 (1) if only for day time and an officer who is superior in rank to peon, sepoy and constable, is authorised by an officer of the gazetted rank under Sec. 41 (2) only for day time, may execute the said warrant of search between sunset and sunrise under Sec. 42 in view of the provisions of Sec. 41 (3), but subject to compliance with its proviso. Under Sec. 42 (2), an officer, to be precise officer under Sec. 42 (1) or officer under Sec. 41 (1) or 41 (2), who exercises power of search between sunset and sunrise, is required to record grounds for his belief under the proviso and send a copy thereof forthwith to his immediate official superior. These officers have not received information, but are authorised by the officer who has received the information and must have taken down in writing. If this part of provision of taking down information in writing and sending to superior officers is made applicable to the officers referred to in Secs. 41 (1) and 42 (2) making them officers under Sec. 42 in view of Sec. 41 (3) as contended by Mr. Keshwani, then they will again be required to take down the information in writing which in fact is not received by them, but is received by their superior officer. The officer in whose favour the warrant is issued by the Magistrate is not one, who has received the information. Information, if any, is received by the Magistrate and on testing and verifying the same when there is a reason to believe that an offence punishable under Chapter IV is committed, the warrant in favour of some of the officers is issued. Such officer has no information and he need not take down the same in writing. An officer authorised by the officer of the gazetted rank, who is empowered under Sec. 41 (2), is also not required to take down the information in writing and send forthwith the same to his immediate official superior as it is his superior on receipt of information has authorised him to proceed in the matter. Therefore, there is no question of compliance of Sec. 42 (2) so far as it relates to taking down of information in writing and sending the same to the superior officer. In view of this fact, said officers may exercise power under Sec. 42 in view of provisions of Sec. 41 (3), but they do not thereby become officers under Sec. 42 and, therefore, provisions of Sec. 50 are not attracted in case of officers under Sec. 41 of NDPS act. In view of this fact, said officers may exercise power under Sec. 42 in view of provisions of Sec. 41 (3), but they do not thereby become officers under Sec. 42 and, therefore, provisions of Sec. 50 are not attracted in case of officers under Sec. 41 of NDPS act. In the instant case, officer enquiring in the matter is a gazetted officer exercising power under Sec. 41 (2) and provision of Sec. 50 is not attracted in his case and, therefore, we do not find any substance in this contention of Mr. Keshwani. ( 21 ) MR. Keshwani, learned Advocate for the appellants contended that the officers referred to in Sec. 41 (2) are required to strictly follow the procedure contemplated in Sec. 42 of the Act. In our opinion, the officers referred to in Sec. 41 (2) and sec. 42 (1) are not the same officers. Officers referred to in Sec. 42 (1) are subordinate in any case to officers referred to in Sec. 41 (2 ). To test the argument of Mr. Keshwani, if an officer of the highest rank, namely, Director General of Police is empowered by the State Government for the purpose of carrying out investigation under Sec. 41 (2) and if that officer is required to strictly follow the provisions of Sec. 42 of the Act as contended by Mr. Keshwani, then he is required to have some authorisation. He is required to inform his superior officer. He is required to record reasons for entering in any premises for the purpose of search between sunset and sunrise. If officers referred to in Sec. 41 (2) are required to follow the procedure as referred to in Sec. 42, then the question will arise as to whom Director General of Police if empowered under Sec. 41 (2) will intimate in writing about the complaint received by him and the search carried out by him. There is no higher officer to Director general of Police in the State. Mr. Keshwani when posed with this question, answered that Director General of Police is subordinate to State Government and may inform the State Government about the same. In our opinion, this is not the purpose for which provisions of Sec. 42 (1) are enacted. If we put this interpretation as suggested by Mr. Mr. Keshwani when posed with this question, answered that Director General of Police is subordinate to State Government and may inform the State Government about the same. In our opinion, this is not the purpose for which provisions of Sec. 42 (1) are enacted. If we put this interpretation as suggested by Mr. Keshwani, it will act contrary to the principles of presumption that higher officers are presumed to act honestly and faithfully and are not likely to abuse their authority. Normally, the officers lower in rank are prone to abuse of authority and such presumption may be attracted in the case of subordinate officers referred to in Sec. 42. This becomes very clear from the fact that State Government has authorised officers of the cadre of Police Inspector and above for Sec. 41 (2) of the Act while the State Government has authorised officers below the rank of police Inspector and above the rank of peon, sepoy and constable, as officers under sec. 42 (1) of the Act. We are supported in our view by the judgment in the case of Maneka Gandhi v. Union of India ( AIR 1978 SC 597 ). There, the relevant observations are as under :-"it is true that when the order impounding a passport is made by the Central government, there is no appeal against it, but it must be remembered that in such a case the power is exercised by the Central Government itself and it can safely be assumed that the Central Government will exercise the power in a reasonable and responsible manner. When power is vested in a high authority like the Central government, abuse of power cannot be lightly assumed. "so also, in the instant case, when officers of the rank of Police Inspector and above are empowered, then it can safely be assumed that they are not likely to abuse their powers. However, subordinate officers, as stated above, are prone to such abuse and to avoid the situation of such abuse, Sec. 42 has specially provided further safeguards of recording reasons, if they are required to search a building, conveyance or enclosed place between sunset and sunrise when they have reason to believe that search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender. Thus, it is clear that officers referred to in Sec. 42 (1) are subordinate to and not the same as referred to in Sec. 41 (2) of the NDPS Act. ( 22 ) THUS, in our opinion, when officers referred to in Secs. 41 and 42 are different and the officers are not the same officers, the question would arise as to whether the non-compliance alleged by the learned Counsel for the appellants goes to the root of the trial or vitiates the trial as observed by the Supreme Court in Balbir singhs case (supra ). We do not dispute with the proposition that provisions of Secs. 41 and 42 are mandatory ones and breach thereof vitiate the proceedings. However, the question in the present case is whether such a breach of the provisions of Secs. 41 and 42 is committed by the officer concerned, who has carried out search and seizure in the instant case. ( 23 ) P. W. 7 is Police Inspector in rank. He himself is a gazetted officer. He is also specially empowered by the State Government vide notification under Sec. 41 (2) of NDPS Act referred above. Therefore, what is to be seen is whether he has complied with the requirements of Sec. 41 (2) of the Act or not. ( 24 ) P. W. 7 has, in his deposition, categorically stated that on receipt of information, he has recorded the same in D. C. P. Police Station Diary being entry no. 17 of 1991. Learned Counsel Mr. Keshwani for the appellants contended that this does not amount to taking down of information in writing as referred under sec. 41 (2) of the Act. Sec. 41 (2) provides that any such officer of gazetted rank. . . . . . . if he has reason to believe from personal knowledge or information given by any person and taken in writing. . . . . . . Therefore, Sec. 41 (2) provides that on receipt of information, the same is required to be taken down in writing. The Act does not provide for the form in which the knowledge or information so received should be taken down in writing. The same may be taken down even on a piece of paper. . . . . . . Therefore, Sec. 41 (2) provides that on receipt of information, the same is required to be taken down in writing. The Act does not provide for the form in which the knowledge or information so received should be taken down in writing. The same may be taken down even on a piece of paper. In our opinion, if the same is taken down in some form, may be of the Police Station, then it is more authentic and reliable one. Here, in the instant case, P. W. 7, he has taken down that information in writing being entry No. 17 of the 1991 in Police station Diary of D. C. P. Learned Counsel Mr. Keshwani contended before us that the same is not produced on record. It is contended by Mr. Keshwani that what is stated by P. W. 7 in his deposition is only posting of an entry in Police Station diary. However, he has not stated that he has taken down the information in writing vide that entry in the Police Station Diary. The question, therefore, is whether what is taken down by P. W. 7 in Police Station Diary vide entry No. 17 of 1991 is the information received by him or something else. P. W. 7 has stated that on receipt of such information, he has made entry No. 17 of 1991 in the Police Station Diary of D. C. P. In the cross-examination, P. W. 7 has stated that he has made entry in the Police Station Diary before 11-00 P. M. This is so stated by the witness in the cross-examination. It must be in reply to the question as to what he did after receipt of the information. He has stated in the cross-examination that he has made an entry in the Police Station Diary before 11-00 P. M. Except that, he was not required to do any other thing. In the complaint at Ex. 26, he has stated that on receipt of such information, he made entry No. 17 of 1991 in Police Station Diary of D. C. P. on 6-5-1991. In the complaint, it is stated that copy of that entry is annexed. However, the same is not found on record. In the cross-examination, he has stated that "it is not true that I am telling a lie about the said information". In the complaint, it is stated that copy of that entry is annexed. However, the same is not found on record. In the cross-examination, he has stated that "it is not true that I am telling a lie about the said information". He has denied that the said entry is not made by him personally. From the fact that he has made an entry in the Police Station Diary being No. 17 of 1991 on receipt of the information, according to the learned Advocate for the appellants we are left to guess as to what that entry pertain to. When P. W. 7 has stated before the Court on oath, corroborated by his complaint, that on receipt of the information he has made an entry, being no. 17 of 1991, in the Police Station Diary of D. C. P. , in our opinion, nothing is left open to presume otherwise than an entry of the information received by him, particularly when what is stated in the entry is not disputed. It is not suggested even that the said entry pertain to something else than the fact of information. ( 25 ) MR. Keshwani, learned Counsel for the appellants, relying on the judgment in the case of Gopal Krishnaji Ketkar v. Mohamed Haji Latif and Ors. AIR 1968 sc 1413 , contended that it was the duty of the prosecution to produce that entry, being entry No. 17 of 1991 as made in Police Station Diary of D. C. P. Mr. Keshwani further contended that even if the defence did not call upon the prosecution to produce the same, it was the duty of the prosecution to produce the same to muster confidence in their say. Supreme Court in the case of Gopal Krishnaji (supra) has observed in para 5 as under :"we are unable to accept this argument as correct. Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds imporatant documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. "here, in the instant case, onus of proof is on the prosecution to establish that the accused are found in possession of narcotic substance in contravention of the provisions of NDPS Act. Recording of an entry in Police Station Diary of D. C. P. is a procedural one. Even if such an entry is produced, it is not going to be a substantive evidence. P. W. 7 has given substantive evidence to the effect that on receipt of the information, he has taken down the same in writing in Police Station Diary of D. C. P. So, that piece of evidence is in the nature of corroborative piece of evidence and that by itself is not a substantive piece of evidence to establish the fact as to whether the procedure is complied with or not. When P. W. 7 was in the box, he could have been very easily called upon by the defence to produce the said entry. It will be pertinent to note that the complaint at Ex. 26 also refers to this entry, being D. C. P. Police Station Diary entry No. 17 of 1991. Therefore, it is not that P. W. 7 is stating for the first time before the Court that on receipt of information, he had taken down the same in writing and had made an entry in the Police Station Diary. Therefore, in our opinion, simply because the prosecution has not produced the same of its own, does not entitle us to draw an inference that what is in a substantive evidence is not correct. Therefore, in our opinion, this judgment of the Supreme Court in the case of Gopal Krishnaji is not applicable in the facts and circumstances of the case. ( 26 ) MR. Keshwani, learned Counsel for the appellants, further contended that there is non-compliance of Sec. 50 of NDPS Act. Section 50 of NDPS Act reads as under :-"50. Therefore, in our opinion, this judgment of the Supreme Court in the case of Gopal Krishnaji is not applicable in the facts and circumstances of the case. ( 26 ) MR. Keshwani, learned Counsel for the appellants, further contended that there is non-compliance of Sec. 50 of NDPS Act. Section 50 of NDPS Act reads as under :-"50. Conditions under which search of persons shall be conducted :- (1) When any officer duly authorised under Sec. 42 is about to search any person under the provisions of Sec. 41, Sec. 42 or Sec. 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Sec. 42 or to the nearest Magistrate. "sub-secs. (2) and (3) are not relevant for our purpose at this stage. Relying on this provision, Mr. Keshwani contended that in the instant case, P. W. 7 has not asked either of the accused as to whether they would like to be searched in presence of a gazetted officer or the nearest Magistrate. Sec. 50 refers to search by officer duly authorised under Sec. 42 of NDPS Act. As we have discussed earlier, the officers referred to in Sec. 41 (2) and Sec. 42 (1) are different officers. It is required to be made clear that for the officers referred to in Sec. 41 (2), who are carrying out the search, provisions of Sec. 50 are not attracted. P. W 7 himself is a gazetted officer. When a gazetted officer is carrying out the search and if a provision requires that he should enquire from the persons to be searched as to whether they would like to be searched in presence of gazetted officer as contended by Mr. Keshwani, in our opinion, is travesty of Sec. 50 (1 ). Section 50 (1) contemplates faith in a gazetted officer or a Magistrate. If enquiring officer himself is a gazetted officer, can it be said that faith reposed in a gazetted officer referred to in Sec. 50 (1) is taken away. It is improper to say that a gazetted officer if he is carrying out the search becomes less trustworthy and is required to take the accused person to some another gazetted officer or a Magistrate. It is improper to say that a gazetted officer if he is carrying out the search becomes less trustworthy and is required to take the accused person to some another gazetted officer or a Magistrate. Section 50 (1) makes it clear that said provisions are attracted when officer duly authorised under Sec. 42 has to inquire from the accused to exercise his option to be searched in presence of a gazetted officer or a Magistrate. Section 42 (1) makes it clear that the officers duly empowered thereunder are not necessarily gazetted officers. For the empowered officers referred to in Sec. 41 (2), provisions of Sec. 50 are not attracted. Reason is that such empowered officers are exercising power of search, seizure under Sec. 41 (2) itself. No doubt, under Sec. 41 (3), they are entitled to exercise powers of search, seizure under Sec. 42 (1 ). Therefore, we do not find any substance in the contention raised by Mr. Keshwani that the search carried out by P. W. 7 is in contravention of the provisions of Sec. 50 of the Act. ( 27 ) EVEN assuming for the sake of argument that P. W. 7 was required to inform the persons as to whether they would like to be searched in presence of a gazetted officer or a nearest Magistrate, then also failure on his part does not affect the case of the prosecution. In the instant case, no contraband substance is found from the person of the accused. Only some money are found, but it is not used as circumstance, much less found to be incriminating, and, therefore, the contention of Mr. Keshwani even if accepted, then also it does not affect the case of the prosecution. ( 28 ) IN the instant case, P. W. 7 in presence of panchas and raiding party has searched the premises. For search of premises, there is no specific provision in NDPS act. In absence of such provision, one has to revert back to the provisions of the criminal Procedure Code and search is carried out in accordance with the provisions of Criminal Procedure Code. ( 29 ) ALL the agruments of Mr. Keshwani that search and seizure is in contravention of Secs. 41, 42, 43 and 50 of the Act are based on the judgment in the case of state of Punjab v. Balbir Singh ( AIR 1994 SC 1872 ). ( 29 ) ALL the agruments of Mr. Keshwani that search and seizure is in contravention of Secs. 41, 42, 43 and 50 of the Act are based on the judgment in the case of state of Punjab v. Balbir Singh ( AIR 1994 SC 1872 ). The Supreme Court has observed in that case as under :"the object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore, these provisions make it obligatory that such of those persons mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Sec. 42 (1 ). To that extent, they are mandatory. Consequently, the failure to comply with these requirements thus affects the prosecution case and therefore, vitiates the trial. "by these observations, it is specifically made clear that such of those officers mentioned therein, i. e. , in Sec. 42 (1), are required, on receiving an information, to reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Sec. 42 (1 ). Supreme Court has not considered whether such of the officer referred to in Sec. 41 (2) is required to record reasons while acting under Sec. 41. As discussed earlier, we are of the opinion that the officers referred to in Sec. 41 (2) and Sec. 42 (1) are different and distinct ones. Officers referred to in Sec. 41 (2) are superior officers while officers referred to in Sec. 42 (1) are subordinate officers. Supreme Court had in its mind as to what can be position for non-compliance of the provisions of Secs. 100 and 165 of the Criminal Procedure Code in case of the officers referred to in Sec. 41 of the Act. Supreme Court while considering whether Secs. 41, 42 and 43 are mandatory or not, has summed up its conclusions and conclusion (4-B), in our opinion, is very relevant for our purpose. It reads as under :-" (4-B ). 100 and 165 of the Criminal Procedure Code in case of the officers referred to in Sec. 41 of the Act. Supreme Court while considering whether Secs. 41, 42 and 43 are mandatory or not, has summed up its conclusions and conclusion (4-B), in our opinion, is very relevant for our purpose. It reads as under :-" (4-B ). If an empowered officer or an authorised officer under Sec. 41 (2) of the act carries out a search, he would be doing so under the provisions of Cr. P. C. , namely, secs. 100 and 165 Cr. P. C. and if there is no strict compliance with the provisions of Cr. P. C. then such search would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the Courts while appreciating the evidence in the facts and circumstances of each case. "therefore, so far as the present case is concerned, non-compliance of proviso to sec. 42 (1), which, in our opinion, is not attracted at all, does not affect the case of the prosecution. P. W. 7 was required to follow procedure contemplated under secs. 100 and 165 of Criminal Procedure Code. No doubt, there also, under subsec. (1) of Sec. 165 of Criminal Procedure Code, the officer concerned is required to record in writing the grounds of his belief and specifying in such writing so far as possible the thing for which search is to be made. In the instant case, P. W. 7 has taken down the information in writing in Police Station Diary immediately on receipt of the information. Sec. 165 (1) of Cr. P. C. does not contemplate for recording reasons for search between sunset and sunrise as required in Sec. 42 (1) of NDPS Act. Therefore, when an information is taken down in writing and proceeding for search, in our opinion, suggests the grounds for his belief for the search of the premises and the persons also. Sub-section (7) of Sec. 100 of Cr. P. C. provides that when any person is searched under sub-sec. (3), a list of things taken possession of shall be prepared and a copy thereof shall be delivered to such person. Mr. Keshwani, learned Counsel for the appellants, contended that this provision is not complied with by P. W. 7 when he carried out the search. P. C. provides that when any person is searched under sub-sec. (3), a list of things taken possession of shall be prepared and a copy thereof shall be delivered to such person. Mr. Keshwani, learned Counsel for the appellants, contended that this provision is not complied with by P. W. 7 when he carried out the search. It is true that at the relevant time it appears that no receipt for the articles taken from possession is issued, but all these articles, according to P. W. 7, are handed over to the Station officer in-charge of Karanj Police Station, who, in his turn, has issued a receipt for the same. In our opinion, this may not amount to compliance of Sec. 100 (7) of Cr. P. C. , but the question required to be considered is whether non-compliance of this provision affects the prosecution case or not. Supreme Court has rightly held in the case of Balbir Singh (supra) that such failure has to be borne in mind by the Courts while appreciating the evidence in the facts and, circumstances of each case. Therefore, this contention of Mr. Keshwani also fails, as neither any prejudice nor adverse circumstance to reject the evidence of P. W. 7 is shown. ( 30 ) MR. Keshwani, learned Counsel for the appellants, has further contended that in the instant case, before search of the person and premises of the accused, p. W. 7 has not offered the search of the personnels of the raiding party by the accused persons and, therefore also, P. W. 7 has committed breach of the provisions of Cr. P. C. In the instant case, according to P. W. 7, when he reached with the raiding party at the premises to be raided, he shouted from the ground floor for nasir. On hearing the shouts, Dhanpalsingh Barunsingh Thakur (appellant No. 1 herein) came down-stairs. He was explained as to why they had come there and the premises are required to be searched. He was asked by P. W. 7 as to whether he would like to search the personnels of the raiding party and he had declined. Thereafter, they have gone to up-stairs in a room on the right-hand side of the stair, which had a light on and the door half-open. He was asked by P. W. 7 as to whether he would like to search the personnels of the raiding party and he had declined. Thereafter, they have gone to up-stairs in a room on the right-hand side of the stair, which had a light on and the door half-open. It is true that other four persons, who were there in that room, were not offered the search of the raiding party. But when accused No. 1 was offered the search of the personnels of the raiding party and when he has declined, it appears that at the time when they reached the room, the officer either might have thought it not necessary to offer search of the personnels of the raiding party or he might have forgotten of the same, but there is no suggestion forthcoming in the cross-examination whereby this failure to offer search of the personnels of the raiding party has affected the case of the prosecution. It is not the case of the defence that the personnels of the raiding party had planted this narcotic substance. Case of the defence is that of total denial. Not only that they have denied the find of narcotic substance, but they have denied their presence in that room at the relevant time, despite the fact that they were arrested from that place on that very night. Therefore, in our opinion, non-compliance of provisions of Cr. P. C. to the effect that search of the personnels of the raiding party is not complied with is not fatal to the case of the prosecution. This apart, this contention remains academic one. The quantity found is large and is one gunny bag. This cannot be hidden on the person of any member of the raiding party. Therefore, in view of quantity found, the contention raised becomes insignificant. ( 31 ) THIS brings us to consider the contention of Mr. Keshwani as to whether the case of prosecution as to search is acceptable or not. Mr. Keshwani contended that in the instant case, the case rests solely on the evidence of P. W. 7, who, in his opinion, is not reliable witness in view of number of infirmities in his evidence. Mr. Keshwani as to whether the case of prosecution as to search is acceptable or not. Mr. Keshwani contended that in the instant case, the case rests solely on the evidence of P. W. 7, who, in his opinion, is not reliable witness in view of number of infirmities in his evidence. Mr. Keshwani further contended that though independent witnesses were available, they are not procured by investigating agency and whoever are procured have not supported the case of the prosecution and, therefore, the conviction cannot be upheld practically on the sole testimony of P. W. 7. Mr. Keshwani contended that evidence of P. W. 7 cannot be relied upon in view of the fact that he is proved to be a liar. To show that witness is a liar, Mr. Keshwani has relied on his evidence, which reads as under :-"it is not correct that Commissioner of Police has issued circular to the effect that p. S. O. should apply his seal on muddamal in case of Narcotic substances. "relying on this reply in the cross-examination, Mr. Keshwani contended that look at this officer who is of the gazetted rank but does not know whether a circular is issued or not. In our opinion, there is misreading of this evidence and that too out of context. There is a fallacy in the argument of Mr. Keshwani. This answer only conveys that he has denied that in such a circular, there is a direction that P. S. O. should apply his seal on muddamal in case of Narcotic substances. If one refers to the report made by P. W. 7 to the Police Station in-charge of Karanj Police Station at Ex. 27, it is clear that he himself has referred to the alleged circular issued by the Police commissioner and he had stated therein that he has complied with points Nos. 1, 2, 3 and 8 and points Nos. 6 and 7 are required to be complied with by the Police Inspector, karanj. This shows and suggests that P. W. 7 was in very much know of the circular dated 11-4-1989 and he has complied with the same, but it may happen that if a particular question is put, reply be in different perspective. Therefore, the answer in the cross-examination denying that P. S. O. is required to affix his seal on muddamal in narcotic case is of no consequence. Therefore, the answer in the cross-examination denying that P. S. O. is required to affix his seal on muddamal in narcotic case is of no consequence. ( 32 ) MR. Keshwani further contended that though he has instructed Nizamuddin p. W. 6 to call for a particular goldsmith (Soni) to weigh the muddamal, yet he has denied the fact that he has named the person and was knowing him. Nizamuddin p. W. 6 was examined first to P. W. 7. Nizamuddin has admitted in the crossexamination that name of the goldsmith to be called was given by P. W. 7. P. W. 7 is not confronted with this fact in his cross-examination. This fact of giving name of goldsmith to be called to Nizamuddin is also denied by P. W. 7 in his substantive evidence. When P. W. 7 was examined after P. W. 6, defence could have specifically placed this fact to P. W. 7, so that he could have explained whether such instruction with specific name and address of Soni was given. Therefore, in our opinion, when p. W. 7 is not confronted with that particular fact, said fact cannot be used against p. W. 7 and on this count also, it cannot be said that P. W. 7 is a liar. ( 33 ) P. W. 7 on completion of the search and seizure at about 3-15 P. M. of 7- 5-1991, entrusted the muddamal and necessary documents to Police Station in-charge of Karanj. It is in evidence that Police Station in-charge of Karanj then entrusted the muddamal to one Asgarali Anvarali P. W. 10 for carrying the same to Forensic Science laboratory. An entry to that effect is made in Ex. 40, which is muddamal register. Mr. Keshwani contended, relying on Ex. 40, that though the offence is committed on 7-5-1991 and though the muddamal was entrusted to the Police Station in-charge of Karanj Police Station on the very day, yet that entry shows the deposit on 6-5- 1991. Referring such variance of date in entry, Mr. Keshwani alleged that there is a fabrication of evidence and contended that premises of the appellants are not searched at all. When we looked at Ex. 40, (which is xerox without title), we could not understand variance of the dates 6-5-1991 and 7-5-1991. Referring such variance of date in entry, Mr. Keshwani alleged that there is a fabrication of evidence and contended that premises of the appellants are not searched at all. When we looked at Ex. 40, (which is xerox without title), we could not understand variance of the dates 6-5-1991 and 7-5-1991. We, therefore, called for the original register, wherefrom it became clear that 6-5-1991 is the date of offence and 7-5-1991 is the date on which the muddamal was received and entrusted to Asgarali Anvarali p. W. 10. In the instant case, information is received on 6-5-1991 by P. W. 7 at about 11-00 P. M. , i. e. , at 23 hours. This information is taken down in writing in Police station Diary of D. C. P. in the date of 6-5-1991. However, when P. W. 7 made a report for registering an offence vide Ex. 27, it appears that the date of offence is shown as 7-5-1991 at 2-15 hours and the date of disclosure of offence is also shown as 7-5-1991 at 2-15 hours. P. W. 7 on receipt of information on 6-5-1991 has immediately taken down the same in writing in the Police Station Diary. After calling for panchas, he had then left for the scene of offence. On reaching the scene of offence and during search, P. W. 7 had called for two persons, one goldsmith to weigh the muddamal and second an officer of Forensic Science Laboratory to test whether the substance found is a narcotic substance or not. One Mr. Dave had visited the scene of offence and he has endorsed below the office copy of his requisition to the effect that he has visited the scene of offence and enquired into the substance seized. The substance seized appeared prima facie to be charas and he has directed the Enquiry Officer to send the same for analysis to Forensic Science Laboratory. Though this document at Ex. 36 is proved in the evidence of P. W. 7, no question is put to him disputing this endorsement by Mr. Dave. We can, therefore, very safely infer that Mr. Dave had visited the scene of offence during search. Mr. Dave is not examined by the prosecution. Mr. Though this document at Ex. 36 is proved in the evidence of P. W. 7, no question is put to him disputing this endorsement by Mr. Dave. We can, therefore, very safely infer that Mr. Dave had visited the scene of offence during search. Mr. Dave is not examined by the prosecution. Mr. Dave is not examined by the prosecution may be for the reason that he was called only to let know the investigating agency prima facie whether the substance found is a narcotic substance ? If the substance seized is found to be not a narcotic substance, whole investigation would be exercise in futility. This was the sole purpose to call Mr. Dave. However, from his endorsement, it is also proved that he has gone to the scene of offence where the search was carried out. ( 34 ) MR. Keshwani further contended that Ghanshyam Soni P. W. 3, according to the prosecution, has come to the scene of offence and had weighed the substance. However, he does not support the case of the prosecution in full. According to him, he weighed the substance in Haveli Police Station. He has further stated that he had not gone to the house of anybody to weigh the substance. This witness in any case admits the fact that he was called by the police personnel from his residence to weigh something. When he had gone, there was some substance in a packet, which he weighed and it weighed 2. 270 kgs. He also identified the muddamal before the court as the one weighed by him. He has also identified the muddamal, saying that he has weighed that black substance. He is hostile to the fact that he was called at the scene of offence. However, in our opinion, when he has issued the receipt at the relevant time for having weighed the substance and has admitted the same, the fact stated in that certificate of weighing that he has gone and how he has gone and what he has weighed and what was the weight stands proved. Ex. 18 is the certificate issued by him which shows that he was called on 7-5-1991 with his weighing machine and weighs in Patwa Sheri of Karanj Police Station area at the house of one person named Nasir. Ex. 18 is the certificate issued by him which shows that he was called on 7-5-1991 with his weighing machine and weighs in Patwa Sheri of Karanj Police Station area at the house of one person named Nasir. In the said house, in presence of two panchas, black substance in the form of small sticks in three polyethylene bags seized by the officer was weighed and it weighed 2. 270 kgs. He had accordingly certified for the same. Mr. Keshwani contended that in view of the provisions of the Evidence Act, this Ex. 18 cannot be read in evidence. Mr. Keshwani contended that this document Ex. 18 is not proved one. Mr. Keshwani contended that to prove a document, the executant is not required to say that he has signed the same, but he is also required to say that the contents are true. In our opinion, when an executant of a document admits that here is a document written and signed by him, that is a proper proof thereof. Unless the contents are known to the executant, the executant cannot say what is the nature of the document. Nature of the document can be known by executor after reading the same. Here, in the instant case, P. W. 3 has admitted in his evidence that he is shown Ex. 13/3. It is in his handwriting, which is a certificate of weighing. It bears his signature and also counter-signature of Police Inspector, Crime. In his substantive evidence, he has admitted that he has weighed black coloured substance seized by the Police in presence of Police personnel, which was in a bag and it weighed 2. 270 kgs. Therefore, short question for our consideration is whether from the evidence of P. W. 3 can it be said that the prosecution has proved that P. W. 3 had gone to the scene of offence from where the substance was seized. In our opinion, Ex. 18 is an answer to the same. P. W. 3 has admitted to have executed ex. 18. He had an opportunity to state before the Court that certain part of that document is not correct or he has not written the same or he written the same at the instance of a particular person and has not written voluntarily. In absence of this denial by P. W. 3, in our opinion, Ex. 18. He had an opportunity to state before the Court that certain part of that document is not correct or he has not written the same or he written the same at the instance of a particular person and has not written voluntarily. In absence of this denial by P. W. 3, in our opinion, Ex. 18 can be read in evidence and it is proved by documentary evidence that the premises of said Nasir was raided and narcotic substance was found from that place. ( 35 ) THE fact of the premises being searched, as stated by P. W. 7, is further corroborated by the evidence of Nizamuddin P. W. 6. This P. W. 6 has stated in his evidence that he was asked to call goldsmith and he has accordingly called goldsmith and brought him to the scene of offence. This witness is contradicted only on the question whether he was given name of goldsmith by P. W. 7 or not, however the fact that he called goldsmith and was brought to the scene of offence is not challenged in his evidence. This witness has also admitted the fact that in the course of search, officer of the Forensic Science Laboratory had come. Thus, by the evidence of P. W. 7, P. W. 3 and P. W. 6, it is proved that the premises as described in the information were searched and narcotic substance was found. ( 36 ) QUESTION is whether the seizure of narcotic substance is proved or not. In the instant case, both the panchas have turned hostile. They have simply stated that they were asked to sign panchnama at Gaekwad Haveli Police Station. The seizure of the muddamal article, in our opinion, is independently proved by subsequent conduct of P. W. 7. P. W. 7 has immediately on completion of the search entrusted the muddamal with necessary documents to the officer in-charge of Karanj Police Station. At the relevant time, one Dahyabhai P. W. 8, was Police Station Officer. He has admitted in his evidence that he was on duty between 00-00 hours and 8-00 hours on 7-5-1991 and he was entrusted with the muddamal, case papers and accused in prohibition Crime Register No. 87/91 by P. W. 7 at 3-45 A. M. In view of the report submitted by him, offence was registered. He has admitted in his evidence that he was on duty between 00-00 hours and 8-00 hours on 7-5-1991 and he was entrusted with the muddamal, case papers and accused in prohibition Crime Register No. 87/91 by P. W. 7 at 3-45 A. M. In view of the report submitted by him, offence was registered. He had entrusted the said muddamal at about 12-00 noon to one Crime Writer Head Vamanrao. It is contended by Mr. Keshwani that when P. W. 8 states before the Court that he handed over the muddamal to Crime Writer Head Vamanrao at about 12-00 noon, how could he have done so when his duty was over at 8. 00 A. M. ? P. W. 8 was not on duty after 8-00 a. M. on 7-5-1991. He had handed over his charge of the police station to one senthaji and Senthaji was in charge after 8-00 A. M. and in any case at 12-00 noon. If we read the evidence of Vamanrao P. W. 9, Asgarali Anvarali P. W. 10 and dahyabhai P. W. 8 together, this diversity gets cleared. P. W. 8 in his evidence has stated that when he received the muddamal, it was in sealed condition. He retained the same with him in lock and key and handed over to Crime Writer Head Vamanbhai at 12-00 noon. He has admitted in the cross-examination that to hand over the muddamal, he stayed in police station for about 4 hours. Vamanrao came at about 10-30 A. M. , but he did not accept the muddamal as he had some Court work. He has admitted that between 8-00 A. M. and 12-00 noon, the cupboard wherein the muddamal was stored was in-charge of Senthaji. Now, P. W. 9 has admitted that at about 12-00 noon on 7-5-1991, P. S. O. Dahyabhai handed him over a sealed packet and an amount of Rs. 1,386. 60 in a polyethylene bag. He received the same and on signing the same, he placed the same in lock and key and retained the packet with him. By that time, said packet was entrusted to Asgarali Anvarali for handing it over to Forensic Science Laboratory. He had made entry in the muddamal register, which shows that muddamal is sent to Forensic Science laboratory. Said entry is Ex. 40. In Ex. By that time, said packet was entrusted to Asgarali Anvarali for handing it over to Forensic Science Laboratory. He had made entry in the muddamal register, which shows that muddamal is sent to Forensic Science laboratory. Said entry is Ex. 40. In Ex. 40 name of the person who received the muddamal is shown as Anvarali Asgarali while muddamal packet was in fact handed over to Asgarali Anvarali. Asgarali Anvarali P. W. 10 has admitted to have received the said packet and in token thereof, he has put up his signature in the register at ex. 40. However, the name of the person who has carried the muddamal is shown as Jamadar Anvarali Asgarali. Buckle number is stated to be 3040. Admittedly, this buckle No. 3040 is of Asgarali Anvarali. Name Jamadar Anvarali Asgarali is not in the handwritings of Asgarali Anvarali. It appears that Vamanrao by mistake has stated the name of a police constable, bearing buckle No. 3040 as Jamadar Anvarali asgarali instead of Asgarali Anvarali. P. W. 10 Asgarali Anvarali when he was in the witness box, he is not asked that the alleged signature is not his signature. He has admitted that, that is his signature. Vamanrao P. W. 9 in his cross-examination has admitted that there is no constable named Anvarali Asgarali in his police station. No question is put to show that there is no constable named as Asgarali Anvarali also. Asgarali Anvarali is examined before the Court and he has admitted that he was handed over the muddamal packet to deliver to Forensic Science Laboratory and he has accordingly delivered the same. What is very seriously contended by mr. Keshwani is that if Senthaji was in charge of the Police Station at the relevant time and the muddamal packet was also placed in his possession, then how and why this Dahyabhai P. W. 8 could have handed over the muddamal packet to Vamanrao. This is explained away by Dahybhai himself in his cross-examination. He has stated that he had stayed in the Police Station for about four hours after his duty was over, with a view to hand over the packet to Vamanrao, Writer Constable. Therefore, when everything including such a time-gap and entry of Santhaji in-charge of the police Station is explained away, we do not find any substance in this contention. He has stated that he had stayed in the Police Station for about four hours after his duty was over, with a view to hand over the packet to Vamanrao, Writer Constable. Therefore, when everything including such a time-gap and entry of Santhaji in-charge of the police Station is explained away, we do not find any substance in this contention. Substantive evidence on record is that muddamal packet was handed over by dahyabhai P. W. 8 to Vamanrao P. W. 9 and there is nothing to doubt it. If defence was really serious, it could have called for the muddamal register of Karanj Police station. Defence could have examined Senthaji also to show that it is he who handed over the muddamal to Vamanrao. Therefore, we do not find any substance in this contention of Mr. Keshwani that the person to whom the muddamal is entrusted is not the same referred in Ex. 40 and it is a suspicious entry. Here, in our opinion, suspicious circumstance as shown by Mr. Keshwani has been fully explained away by the evidence of P. W. 8, P. W. 9 and P. W. 10. 36a. Mr. Keshwani further contended that investigation in the instant case is not an honest one. Mr. Keshwani, learned Counsel, contended that P. W. 7 had a specific information that one Nasir on hired premises, with the assistance of his employees, is doing business of charas. If the information revealed that name of Nasir, P. W. 7 ought to have made necessary attempt to trace and prosecute him. Admittedly, the premises for which the information was received is owned by one Sirajmiya P. W. 5. P. W. 5 in his evidence has stated that that alleged Nasir, for whom the information is received is not his tenant. However, he has stated that one Nasir Dudhwala is one of his tenants. He has stated positively that Nasir Mudatkhan is not staying there as tenant. P. W. 5 has stated that none of the accused is residing in his premises. When it is in evidence that alleged Nasir, for whom the information is received, is not residing in the house of P. W. 5, the house for which the information is received, there was no reason to carry out any investigation in that direction. P. W. 5 has stated that none of the accused is residing in his premises. When it is in evidence that alleged Nasir, for whom the information is received, is not residing in the house of P. W. 5, the house for which the information is received, there was no reason to carry out any investigation in that direction. No dishonesty muchless irregularity can be inferred on the part of investigating officer for want of enquiry and search for Nasir. We, therefore, do not find any substance in this contention. On the contrary, by the evidence of P. W. 5, it is clear that none of the accused is occupying the room, as tenant and are found at odd hour of the night wherein the raid is carried out. ( 37 ) THIS brings us to consider the contention of Mr. Keshwani that in any case accused cannot be said in conscious possession of narcotic substance. From the evidence of P. W. 7, P. W. 6 and P. W. 3 and endorsement of Mr. Dave below Ex. 36, it is clear that the premises for which the information was received was searched. Said premises is in a building owned by P. W. 5. Said building had shops with shutter at the ground floor. Adjoining to it, there is a hotel named Wood Palace hotel, opposite to electric pole No. PK 791. P. W. 7, on reaching near the premises with the raiding party, shouted for Nasir from the ground floor. On hearing the shouts, one person named Dhanpalsingh Thakur came down-stairs. Informing him the purpose of arrival, they went up-stairs with him, in a room on the right side of the stair, where other four accused were present. On search of that premises, the narcotic substance was found. The same was weighed by P. W. 3 and tested by Mr. Dave of Forensic Science Laboratory on spot and after drawing seizure panchnama, the same was seized. Question is whether all these accused persons be said in possession of the muddamal substance. ( 38 ) THE premises were raided after 11-15 P. M. and the search continued upto 3-25 A. M. , including time spent in preparation of panchnama, etc. At such odd hour of the night, all the accused persons were found present in that house. Question is whether all these accused persons be said in possession of the muddamal substance. ( 38 ) THE premises were raided after 11-15 P. M. and the search continued upto 3-25 A. M. , including time spent in preparation of panchnama, etc. At such odd hour of the night, all the accused persons were found present in that house. According to the owner of the premises, i. e. , P. W. 5, neither of them is his tenant nor any of them is in lawful occupation of it. In absence of any explanation by the accused as to why they were present in the premises at such an odd hour of the night, there is nothing wrong if they are held to be in occupation of the said premises. Whether lawfully or otherwise will be a question vis a vis owner P. W. 5. In view of this set of facts, it is to be held, and rightly held by the learned Judge, that they are found in possession of the room and muddamal. Mr. Keshwani, relying on a judgment in the case of Patel Jethabhai Chatur v. State of Gujarat ( AIR 1977 SC 294 : [1977 glr 360 (SC)], contended that possibility to possess the contraband goods does not amount to possession to constitute an offence. In the aforesaid case, Supreme court has specifically observed : "it would not be correct to say that merely because a participant in a drinking party can stretch his hand and take liquor for his use and consumption, he can be held to be in possession of liquor. The question is not whether a participant in a drinking party can place himself in possession of liquor by stretching his hand and taking it but whether he is actually in possession of it. Possession again must be distinguished from custody and it must be conscious possession. . . . . " In the aforesaid case, whoever were found in possession of a glass with liquor were held and found to be in possession, but others who had an opportunity to have possession of liquor were not found to be in possession and, therefore, possibility to possess cannot be said to be a possession much less conscious possession. . . . " In the aforesaid case, whoever were found in possession of a glass with liquor were held and found to be in possession, but others who had an opportunity to have possession of liquor were not found to be in possession and, therefore, possibility to possess cannot be said to be a possession much less conscious possession. In the instant case, five accused were in a room unexplained as to how and why they are present in the room at such odd hour of the night and no one else is found in possession or occupation of that room and no one elses possession or occupation is alleged either by the accused or the owner and in that room narcotic substance was found lying on the side. In absence of any explanation about their presence in that room, in our opinion, no other inference, except they being in possession, can be drawn particularly when it is not a public place. The principle laid down in the aforesaid case by the Supreme Court is not attracted so far as the present case is concerned. There, in the case of Jethabhai (supra), said contraband goods could be possessed and could not be possessed also. It was not found in actual possession. Possibility to possess contraband goods is no offence. Here, in this case, all the accused are found in occupation and possession of the room which contained contraband goods. It is not even suggested by the accused that the said room was accessible to all and to even owner and either the police or anyone else had planted the narcotic substance. ( 39 ) MR. Keshwani, relying on the judgment in the case of Antony Sauri Pilley v. State of Maharashtra (1993 Cri. LJ. 1502), contended that in absence of proof of conclusive possession of the premises, the accused simply found present cannot be fastened with the liability for possession. ( 39 ) MR. Keshwani, relying on the judgment in the case of Antony Sauri Pilley v. State of Maharashtra (1993 Cri. LJ. 1502), contended that in absence of proof of conclusive possession of the premises, the accused simply found present cannot be fastened with the liability for possession. In the aforesaid case, the Bombay High court has observed : "even accepting the prosecution case at its best, the position that emerges is that no evidence was brought forward before the Court in order to indicate that the premises from where the gunny bag was allegedly recovered belonged to the accused, that he was in possession of those premises, that the contraband had been brought there, that he was dealing in it, that he had handled it or that he was in any manner concerned with it". In the aforesaid case, accused was not found in possession of the premises while in the present case, all the accused were present in the premises. When they are found to be in possession of the premises and from the premises contraband goods are found, they are in possession thereof, particularly when it is not found accessible by anyone else. Therefore, the judgment in Antony Pilleys case (supra) also does not assist or help Mr. Keshwani. ( 40 ) MR. Keshwani, learned Advocate for the appellants, has relied on judgment in the case of Ram Rattan v. State of Punjab ( AIR 1979 SC 1249 ). Relying on the said judgment, he contended that the accused are not in conscious possession of the premises from where narcotic substance is found. Accused are not tenants; nor owners of the premises and, therefore, they cannot be held to be in conscious possession of narcotic substance. In the aforesaid case, when the premises was raided, the accused was not present in the premises. Coupled with his absence in the premises, prosecution could not show that either he was a tenant or an owner of the premises. When prosecution could not establish possession of the premises by the accused in any manner, he cannot be held to be in possession of the substance found from that premises. Therefore, we do not dispute the ratio laid down by the Supreme court in that case. . When prosecution could not establish possession of the premises by the accused in any manner, he cannot be held to be in possession of the substance found from that premises. Therefore, we do not dispute the ratio laid down by the Supreme court in that case. . ( 41 ) IN the present case, at odd hours of the night when the premises was raided, all the accused were present and have not explained as to how and why and since when they were present in the premises. Therefore, in our opinion, only inference can be drawn from their unexplained presence in the premises, they being not tenants of the premises is that they were in possession of the premises at the relevant time and the substance found from that premises is possessed by them. ( 42 ) MR. Keshwani then contended that there is no direct evidence to connect the accused. There are only circumstances which also do not form the complete chain to draw an inference of the guilt of the accused. We do not dispute the principle of appreciating circumstantial evidence in criminal trial. However, in the facts and circumstances of this case, there is a direct evidence to link the accused with the narcotic substance. At odd hours of night, accused are found present in the premises. They are not able to show with what right they were present there. It is proved that narcotic substance weighing 2. 270 kgs. is found from that premises. These facts by themselves show the direct implication of the accused with narcotic substance. ( 43 ) MR. Keshwani has tried to explain why accused have not explained their presence in the premises. Mr. Keshwani contended that a complex question was put to the accused in their examination under Sec. 313 of the Code. He also contended that there was no specific and clear question put to accused. This does not appear to be correct reading of the questions put under Sec. 313 of the Code. The question was there to the effect that they were found present at the time of raid. Their answer to that complex question was simple one of denial. It cannot, therefore, be said that accused had no opportunity to explain their presence. This does not appear to be correct reading of the questions put under Sec. 313 of the Code. The question was there to the effect that they were found present at the time of raid. Their answer to that complex question was simple one of denial. It cannot, therefore, be said that accused had no opportunity to explain their presence. They could have explained their presence in the premises raided, more particularly in view of the fact that none of the accused belong to that locality. From their further statement, it is clear that accused No. 1 is from U. P. , accused No. 2 is from Bundi Bazar; accused No. 3 is from Three Gates; accused No. 4 is from Jamalpur area; and accused No. 5 is from Bawa Latif Gali. All accused hailed from locality other than the locality where the premises searched is situated. Accused Nos. 1 and 2 are not local persons. ( 44 ) IN view of the above discussion, we are of the opinion that evidence of p. W. 7 is trustworthy and reliable one. There is nothing on the record to show that he had any grudge/bias against any of the accused. It was contended by Mr. Keshwani that panchas for search of the premises were called from other locality in contravention of the requirement of Sec. 100 of Cr. P. C. Simply because the panchas of the same locality were not called, search by itself is not vitiated unless grave prejudice thereby is shown. It is not shown by accused as to what and how any prejudice is caused by calling panchas from other locality. It is even not suggested that said panchas were hostile to them. Some mistakes which are not material do not affect the prosecution case. On the contrary, the panchas have turned hostile and the question of prejudice does not survive. ( 45 ) IN view of the above discussion, we do not find any reason to interfere with the finding of guilt recorded by the learned Judge, Hence, the appeal is dismissed. .