Judgment : ( 1 ) THIS appeal is directed against the judgment of conviction and sentence rendered by the learned Special District and Sessions Judge, Madurai in c. C. No. 409 of 1995, dated 20-9-1995 against the appellant/accused for the offence under Section 8 (c) read with 21 of the Narcotic Drugs and Psychotropic substances Act. ( 2 ) FOR better appreciation of the case on hand, the case of the prosecution needs narration, which is as follows: At or about 20. 15 hours on 30-12-1994, near the bus stop situated on the western side of Madurai Pudhunathan Road, opposite to Ilaiyarani and Maharani theatrs, the appellant/accused herein, was found in possession of 55 ampoules of TIDIGESIC, injection medicine, each ampoule containing 2 ml. with the contents of BUPRENORPHINE, a narcotic and psychotropic substance specified by the relevant Rule and the Act above referred. The value of the same would be about Rs. 550. When the appellant/ accused was intercepted by the respondent police at the above place and time, he was found with the above contraband without any licence or valid permit, kept in a brown colour bag marked under M. O. I, which consisted of the green colour box with all the 55 ampoules, which was recovered by the respondent after getting the written consent Ex. P-1 from the appellant that a search of his person was not necessary before any Gazetted Officer or the nearest Magistrate, but however, with the recovery mahazar Ex. P-2 prepared by the Inspector, attested by P. W. 1 Mari and another by name Krishnan. The contraband, thus, recovered was wrapped with brown paper, tagged with twine and NIB seal was put attested by P. W. 1 and another witness. After serving a copy of the recovery mahazar to the appellant/accused, he was arrested brought to the Police station and a case was registered, in NIB CID, Madurai Crime Number 152 of 1994 for the offence under Section 22 read with Section 8 (c) of the Act. the contraband was seized as per the rules provided therefore. After recording the statements from the accused as well as the other witnesses, the case was registered as above referred and the FIR has been marked as Ex. P-7. It was followed by the Special Report Ex. the contraband was seized as per the rules provided therefore. After recording the statements from the accused as well as the other witnesses, the case was registered as above referred and the FIR has been marked as Ex. P-7. It was followed by the Special Report Ex. P-8 sent by P. W. 5 to the Deputy superintendent of Police, Madras, as contemplated under Section 57 of the Act, on 30-12-1994. P. W. 5 gave Ex. P-4 requisition to the Court to send the seized articles for chemical examination. P. W. 2, the Assistant State Drugs Controller and other witnesses were examined. After obtaining the report of the Chemical examiner, P. W. 4, a final report against the appellant for the offence under section 18 read with Section 8 (c) of the Act was filed by P. W. 5 before the trial court. ( 3 ) P. W. 1 is the attester for Ex. P-1 and Ex. P-2. P. W. 2 Assistant State Drugs controller speaks to the factum that the appellant/accused was given licence to carry on the medical shop under the name and style of Raja pharmacy till 31-12-1992 at Door No. 31, Pudhunathan Road, Palanisamynagar, Madurai, and that thereafter the licence had not been renewed and to the said extent, he was examined by the respondent Police through his superior authorities. P. W. 3 is the Head Clerk, attached to the trial Court, has spoken to the factum of receiving the materials object in this case under Form 95 along with the FIR and letter, and sending the same for chemical examination with the original of ex. P-5, the office copy of the covering letter and the receipt of the Chemical examiners Report Ex. P-6 P. W. 4, the Chemical Examiner speak to the factum of the Chemical Analysis conducted by her over the material objects M. O. 2 series. She would state that each ampoules of M. O. 2 series bore the name medicine as buprenorphine Injection and TIDIGESIC and that the quantity of buprenorphine was 0. 3 milligram, and the Manufacturing Licence No. was noted as 14, the batch number was PRO 71 and date of manufacturer was august, 1994, with the manufacturers address as Tamil Nadu Dadha pharmaceuticals Limited, Dadha Nagar, Madras. Ex. P-6 is the report given by her. 3 milligram, and the Manufacturing Licence No. was noted as 14, the batch number was PRO 71 and date of manufacturer was august, 1994, with the manufacturers address as Tamil Nadu Dadha pharmaceuticals Limited, Dadha Nagar, Madras. Ex. P-6 is the report given by her. According to her, M. O. 2 series were found to contain Buprenorphine, which is derived from Opium alkaloid The baine. P. W. 5, Inspector of Police, nib CID, speaks to the factum of intercepting the appellant/accused on the relevant time and date, recovery of the contraband with all the procedure adopted by him in front of witnesses, preparation of the Mahazar, consent memo and the whole investigation done by him and ultimately laying the final report for the offence above referred against the appellant herein. ( 4 ) WHEN the accused /appellant was examined under Section 313 of the Code of Criminal Procedure with regard to the incriminating circumstances available against him in evidence, he has denied his complicity in the crime but however, did not choose to examine any witnesses on his behalf. ( 5 ) AFTER the recording the oral evidence of P. Ws. 1 to 5 and documentary evidence Ex. P-1 and Ex. P-8, with the making of three material objects on behalf of the prosecution during the trial, for no witness examined on the side of the defence, on an elaborate discussion, the learned Special Judge has found the appellant guilty for the offence under Section 8 (c) read with Section 21 of the n. D. P. S. Act convicted and sentenced him to undergo rigorous imprisonment for a period of 10 years with a fine of rupees one lakh, in default of payment of which, to undergo simple imprisonment for three more years. Challenging the said judgment of conviction and sentence, the accused has come forward with the above appeal. ( 6 ) I have heard the Bar for the appellant as against the learned Government advocate for and on behalf of the respondent. ( 7 ) MR. Challenging the said judgment of conviction and sentence, the accused has come forward with the above appeal. ( 6 ) I have heard the Bar for the appellant as against the learned Government advocate for and on behalf of the respondent. ( 7 ) MR. Jagadeesan, learned Counsel appearing for the appellant would contend: (i) that the seized contraband is the injection medicine manufactured by m/s. Tamil Nadu Dadha Pharmaceuticals Limited, Madras, under the proper and valid licence and batch number was found in glass ampoules and that it was not manufactured or created by the appellant and that as such, law provides the basic ingredients of the said medicine being permitted to certain limited extent for medicinal purposes; (ii) that the whole trial and the case of the prosecution has become vitiated for the reasoning that the investigation has not been done by the respondent with regard to the manufacture of the Narcotic Drugs and psychotropic Substances Act, particularly, against the manufacturer of the said M. O. 2 series; (iii) that then on-examination of the manufacturer of them. O. 2 series, goes to the very root of the prosecution case and that, therefore, the conviction and sentence recorded by the learned Special Judge cannot be sustained in the eye of law; (iv) that even assuming that the appellant was found with the TIDIGESIC medicine containing Buprenorphine, a narcotic substance, it was permitted by the Act under the proper licence and that even so, while searching the appellant/accused, the mandatory provisions of section 50 of the Act has not been complied with and that Ex. P-1, the consent letter was a make-believe document, which manifestly shows that the whole trial became vitiated; (v) Lastly, it was the contention of the learned Counsel that for having found in possession of drug, namely, the seized contraband in this case, the appellant/accused was prosecuted in a separate case for want of licence and its renewal. By contending so, learned Counsel submitted that the impugned judgment of conviction and sentence recorded against the appellant is highly improper, not valid in law and cannot be sustained even for any purpose. ( 8 ) PER contra, Mr. A. N. Rajan, learned Government Advocate, would controvert every one of the said contentions made on behalf of the appellant and while doing so, justifies the very impugned judgment under this appeal. ( 8 ) PER contra, Mr. A. N. Rajan, learned Government Advocate, would controvert every one of the said contentions made on behalf of the appellant and while doing so, justifies the very impugned judgment under this appeal. He would state further that on the day of seizure, the appellant had no valid licence and that he was found in possession fo Schedule drug, namely, TIDIGESIC, the main ingredient of which was Buprenorphine, narcotic substance and that, therefore, he was rightly booked under the law and tried. Learned Government advocate would further contend that the Buprenorphine is a substance made out of opium alkaloid and the quantity found in M. O. 2 series is an offence and that, therefore, the Special Judge was justified in basing a conviction on the evidence adduced by the prosecution. ( 9 ) IT is not in controversy among the parties herein that the contents, buprenorphine has also been included one of the Narcotic and Psychotropic substances by the amending of the Rules for the Act and any person found in possession of the said drug without any valid licence or permit is deemed to be an offender under this Act, and that it was made out of opium alkaloid. Section 2, sub-clause (xv) of the NDPS Act, defines opium in the following words:"opium" means-(a) the coagulated juice of the opium poppy; and (b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any preparation containing not more than 0. 2 per cent of morphine;"sub-clause (xvi) defines "opium derivative", which means " (a) medicinal opium, that is, opium which has undergone the processes necessary to adopt it for medicinal use in accordance with the requirements of the Indian pharamacopoeia or any other pharamacopoeia notified in this behalf by the central Government, whether in powder form or granulated or otherwise, or mixed with neutral material: (b) prepared opium, that is, any product of opium obtained by any series of operation designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked; (c) phenanthrene alkalodis, namely, morphine, codine, the baine and their salts; (d) diacetymorphine, that is, alkaloid also known as diamorphine or heroin and (e) all preparations containing more than 0. 2 per cent of morphine or containing any diacetylmorphine; the Explanation appended to the above section of law also requires extraction;"explanation:-For the purposes of Clauses (v), (vi), (xv) and (xvi) the percentages in case of liquid preparations shall be calculated on the basis that a preparation containing one per cent of a substance means a preparation in which one gram of substance, if solid, or one milliliter of substance, if liquid, is contained in every one hundred milliliter of the preparation and so on in proportion for any greater or less percentage: provided that the Central Government may, having regard to the developments in the filed of methods of calculating percentages in liquid preparations prescribe, by rules, any other basis which it may deem appropriate for such calculation". A casual reading of the defini tions given above in Section 2 of he NDPS Act, clinches the fact that such of the opium and opium derivatives containing not more than 0. 2 per cent of morphine have been excluded from the narcotic and psychotropic substances 0. 2 per cent of morphino cannot be equated with the 0. 3 mg. of Bupremorphine found in each of the 55 ampoules which is conspicuously and manifestly far lesser than 0. 2 per cent of the morphine. A perusal of Ex. P-6 would reveal that on each card board box and on the ampoules. "buprenorphine Injection Tidigesic for IM/iv Each ml. contains buprenorphine 0. 3 mg. (as Buprenorphine Hydrochloride)Mfg. Lic. No. 14 Batch No. PRO 71 date of Mfr. Aug. 94. Expiry Date July 96. Tamil Nadu Dadha Pharmaceuticals Ltd. , madras 600 074. "the note of P. W. 4 found in Ex. P-6 is that Buprenorphine is derived from opium alkaloid The baine and that each of the injection ampoule was found to contain 0. 3 mg. of Buprenorphine. It is, thus, seen that the evidence of P. W. 4 recorded by the learned trial Judge, was found fully in agreement with the contents made in Ex. P-6 by her. If that is so, it is made clinchingly clear that the evidence of P. W. 4 and Ex. P-6 are vital documents relied on by the prosecution and as such, they have necessarily to be accepted. The fact that the recovered m. O. 2 series, was subjected to chemical examination as TIDIGESIC injection medicine has not been disputed. If that is so, it is made clinchingly clear that the evidence of P. W. 4 and Ex. P-6 are vital documents relied on by the prosecution and as such, they have necessarily to be accepted. The fact that the recovered m. O. 2 series, was subjected to chemical examination as TIDIGESIC injection medicine has not been disputed. It is also noticed that the prosecution has not denied the fact that the said medicine has been manufactured by M/s. Tamil nadu Dadha Pharmaceuticals, Madras under the proper and valid licence in accordance with the Indian or English pharmacopoeia. If this is the position, then, it is highly difficult for me to accept the case of the prosecution to take the ingredients of TIDIGESIC medicine alone as one of the ingredients of the NDPS act and charge the appellant for the offence referred herein. Admittedly, no investigation was done by the respondent as to whether the manufacturer of m. O. 2 series has infringed the relevant Rules or not. It is also significant to note that it is not the case of the prosecution that the appellant had manufactured m. O. 2 series by himself and as such he was found in possession of the same on the date and time of the seizure. If this is the position, in so long as no investigation has been done with regard to the manufacturer of the Said contraband M. O. 2 series, I am of the firm view that the whole of the prosecution must necessary fall to the ground as it goes to the root of the controversy. ( 10 ) MAY be, the appellant/accused was found in possession of the said drug by name TIDIGESIC in card board boxes with the manufacturers name and address, licence and batch number and so on and he may have possessed the same without any valid licence or license renewed but, however, it is stated that for the reason of possession of the schedule drug, the accused was being prosecuted separately in some other Court. Even so, on seeing the very ampoules, the investigating officer could have noted the address and numbers given in every ampoule. No explanation, however, has been made as to why he has not made any investigation or attempted to verify the same. Even so, on seeing the very ampoules, the investigating officer could have noted the address and numbers given in every ampoule. No explanation, however, has been made as to why he has not made any investigation or attempted to verify the same. Simply because the TIDIGESIC medicine contains Buprenorphine, without having any regard to the definition section above referred to, launching the prosecution and booking the appellant/accused for the relevant offences under the Act are not correct and cannot at all be maintained. The Court below has totally over looked the above said aspect and also deliberately failed to take note of the said fact. It is, therefore, under the circumstances, it is not known under what basis of the materials, the Court below has taken cognizance of the offence. After, thus, having considered the above said serious laches, I am totally constrained to hold that the prosecution has deliberately failed to prove that M. O. 2 series come within the definition of Section 2 of the N. D. P. S. Act. The non-examination of the manufacturer of the said drug and no investigation done on that score by the respondent would affect the prosecution case in its entirety and the learned trial judge has totally and completely overlooked the same, which is erroneous and cannot be sustained in the eye of law. ( 11 ) COMING to the other important contention, that the mandatory provision of Section 50 of the NDPS Act even assuming without admitting, in searching the accused /appellant had not been complied with, I have to say that Ex. P-1, the consent letter cannot at all be believed, nor the evidence of P. W. 1 or P. W. 5. A mere look upon Ex. P-1 would go to show that it was prepared by one of the staff of P. W. 5, in a blank white paper. The signature of the appellant/accused with the date 30-12-1994 with his name written in capital letter in brackets are seen in the middle of the said paper. Two witnesses, P. W. 1 and another by name krishnan are seen to have attested. The letters written in the body of the said ex. P-1 was by some other person. It is not the case of the prosecution that the appellant/accused had refused to write the consent letter in his own handwriting. Two witnesses, P. W. 1 and another by name krishnan are seen to have attested. The letters written in the body of the said ex. P-1 was by some other person. It is not the case of the prosecution that the appellant/accused had refused to write the consent letter in his own handwriting. It is manifestly seen that the said handwriting belongs to some one whose signature was not at all claimed to have been there. The appellant was referred to as accused with full address on the left hand side margin of Ex. P-1. The first paragraph of Ex. P-1 betrays the very genuineness and validity of the so-called consent letter. The alleged confession made by the appellant/accused specifically spelt out in paragraph one and paragraph 3 of the so-called answer would belie the claim of P. W. 1 and P. W. 5. The writers name has not been referred to in this Ex. P-1. More significantly, when P. W. 5 claimed that such consent letter was obtained in the presence of the attesters, who are P. W. 1 and another by name Krishnan, who is none other than his employer, P. W. 1 never claimed that in his presence the consent letter was obtained by P. W. 5. This aspect of the case is very significant and vital to show that Ex. P-1 was a created document by P. W. 5 and his staff subsequently after obtaining the signature of the appellant and the witnesses in white blank paper. The above aspects would clinchingly demonstrate that before searching the accused on suspicion, the respondent has not informed the accused /appellant of his right to be searched before a Gazetted Officer or the nearest Magistrate if he so desires. What was done in this case, it seems, that after having made him to confess that he was in possession of the TIDIGESIC ampules, his signatures with date were obtained in white blank papers and was got over subsequently. What was done in this case, it seems, that after having made him to confess that he was in possession of the TIDIGESIC ampules, his signatures with date were obtained in white blank papers and was got over subsequently. By doing so, the mandatory provision of Section 50 has dearly been violated and has not been complied with, which resulted in great prejudice to the accused for the very reasoning that if the search had been conducted before any Magistrate or a gazetted Officer, the whole of the prosecution could have been avoided for the reason of the address and details found upon each of the ampoules and the card board boxes. ( 12 ) THE evidence of P. W3 and P. W. 1 seem to have rendered no help to the prosecution nor the investigation claimed to have been done by P. W. 5. the various other observations made by the learned Special Judge in his lengthy judgment are not sound and not correct in the eye of law. The very approach adopted by the learned Judge cannot be countenanced to record the stringent punishment and guilt of the accused for the offence charged and tried. Thus, after having considered the whole hub of the adduced legal evidence and the circumstances, lam fully constrained to hold that the very impugned judgment of conviction and sentence rendered by the learned Special Judge cannot at all be sustained for any reason for the very approach adopted by the learned trial judge is not correct and totally erroneous. It has to be seen that the prosecution has totally and deliberately failed to establish the guilt of the accused beyond all reasonable doubts and in fact, it has miserably failed to prove the same. Therefore, the conviction and sentence recorded against the appellant/accused is liable to be set aside. ( 13 ) IN the result, for all the foregoing reasonings, the conviction and sentence recorded by the learned Special Judge In C. C. No. 409 of 1995, dated 20-9-1995 is set aside and the appellant/accused is acquitted of the charges fine amount, paid, if any, is ordered to be refunded immediately.