Judgment : 1. This appeal is directed against the conviction of the accused/appellant for the offence under Section 8(c) read with Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substance Act, thereby sentencing him to undergo rigorous imprisonment for a period of ten years and also to pay a fine of Rs. 1,00,000, rendered by the learned Special District and Sessions Judge, Madurai for N.D.P.S. Cases in C.C.No.292 of 1994 on 10. 1994. 2. Mr.John Eugene Brennan, an Irish National, who had come over to India as tourist under the valid travel documents, was found standing near the Bus Stand at Kodaikanal Town at about 18.00 hours on 35. 1994 and on seeing the Police party led by the Inspector of Police, Kodaikanal, he had a sudden swerve and attempted to board the nearby parked transport bus, however, stumbled down and sustained injury on his leg. He was over powered by the Inspector of Police and his party. The belongings of the appellant were searched and on doing so, it was claimed that he had voluntarily taken out a paper packet from his dress and produced before the Inspector. It was found that the package made of polythene contained about 100 grams of liquid Has-hish, a narcotic substance under the Act the possession of which without any valid permit or licence since amounts to an offence under the Act, it was seized under the cover of a mahazar Ex.P1 attested by P.W.2 and another, by P.W.6 Inspector. The appellant was arrested and he was sent to the Government Hospital, Kodaikanal for the injury sustained by him, where P.W.5, the Doctor attached to the said hospital noted down an injury, namely, a contusion of 8 x 8 cms in size over the right ankle joint. But however, the Doctor referred the patient to the Government Rajaji Hospital, Madurai for further treatment, as there were no adequate facilities available for his treatment. Ex.P5 is the copy of the Accident Register dated 35. 1994 given by P.W.5. After the treatment at the Hospital at Madurai, it was found that there are two fractures in both the legs of the appellant. Ex.P5 is the copy of the Accident Register dated 35. 1994 given by P.W.5. After the treatment at the Hospital at Madurai, it was found that there are two fractures in both the legs of the appellant. Since he was not completely cured, by obtaining the order of this Court, he had the treatment in Vijaya Hospital, provided by Dr.Mohandoss, the famous Orthopaedist, at his own cost and to this extent the Doctor above referred to appears to have given a certificate with the opinion, which the appellant wants to produce the same as additional evidence by filing a separate petition above referred to. 3. The contraband recovered, as it was produced by the appellant on the evening of 35. 1994, was kept under the seal with the due package and a sample of which has been sent to chemical examination through the Court and accordingly the report has been received as spoken to by P.W.4 and evident from Exs.P3 and P4. The Chemical Analyst would claim that the contraband received and subjected to chemical examination was found to be Ganja oil, otherwise called as Has-hish in liquid form. 4. It is also noticed that the seized article under the cover of mahazar Ex.P1 was not only subjected to chemical examination, but also followed by registering of a case against the appellant in Crime No.200 of 1994 of Kodaikanal Police Station for the offences under Section 4(1 )(a) of Tamil Nadu Prohibition Act and Section 8(c) read with Section 20(b)(i) of the N.D.P.S. Act and the investigation was done by P.W.6, the Inspector of Police. It appears that P.W.1, Head Constable and P.W.2 Constable were present along with the other Police party when the alleged seizure was made from the appellant. M.O.1 is the credit card and M.O.2 is the passport of the appellant recovered by P.W.6 and M.Os.3 and 4 are the seized contraband, which was subjected to chemical analysis. Ex.P6 is the copy of the F.I.R., Ex.P2 is the requisition sent by P.W.6 to the Court to send the case properties for the chemical analysis, Ex.P3 is the copy of the letter sent by the court and Ex.P4 is the Chemical Analysis Report. P.W.1 Head Constable assisted PW6 Inspector all through in this case. Ex.P6 is the copy of the F.I.R., Ex.P2 is the requisition sent by P.W.6 to the Court to send the case properties for the chemical analysis, Ex.P3 is the copy of the letter sent by the court and Ex.P4 is the Chemical Analysis Report. P.W.1 Head Constable assisted PW6 Inspector all through in this case. After having completed the investigation by examining the witnesses and so on in accordance with law, a final report against the accused for the offences above referred to was filed before the trial Court. 5. After the initial procedure being adopted, it appears that the appellant was questioned under Section 313, Cr.P.C. on the basis of the incriminating portions of the evidence made available against him. But however, he has denied his complicity in toto and also has not examined any witness on his behalf. 6. By recording the oral evidence of six witnesses as mentioned above from P.Ws.1 to 6 and marking six documents Exs.P.1 to P6 and four material objects M.Os.1 to 4 on behalf of the prosecution with the written submissions made on behalf of the accused, the learned Special Judge, who conducted the trial, has considered elaborately and ultimately held the accused guilty for the offence charged under the provisions of the N.D.P.S. Act, namely, Section 8(c) read with Section 20(b)(ii) of the Act and convicted and sentenced accordingly as above referred to. Aggrieved at this, the accused has come forward with this appeal, challenging the correctness and validity of the same. 7. Since the accused has not paid the fine, he was not enlarged on bail on suspending the sentence awarded against him and is behind the bars, the appeal is taken up, heard and disposed of on merits. 8. I have heard the Bar for the respective parties for and against the impugned judgment. 9. 7. Since the accused has not paid the fine, he was not enlarged on bail on suspending the sentence awarded against him and is behind the bars, the appeal is taken up, heard and disposed of on merits. 8. I have heard the Bar for the respective parties for and against the impugned judgment. 9. Mr.Veeraraghavan, the learned counsel for the appellant challenged the impugned judgment on the following grounds:-(1) While making a search of the person of the appellant on the day of occurrence and prior to that P.W.6 had not informed nor given the legal option to the appellant as to whether he was willing for his person being searched before the nearest Magistrate or a Gazetted Officer, and the said inaction clearly amounts to the violation of Section 50 of the N.D.P.S.Act, which was held to be the mandatory function to be complied with and the claim of P.W.6 that he had orally asked the appellant about his option to be searched and the alleged refusal of the appellant was merely an ipse dixit, self-serving one and not corroborated by any one and clearly an after thought and that therefore, on this ground alone the whole trial of the prosecution has become vitiated. (2) Immediately after the so-called nabbing of the appellant and seizure of the contraband under Ex.P1, arresting the accused and registering the case, no special report either oral or in writing or otherwise had been sent to the superior officer of P.W.6, as specifically spelt out under Section 57 of the Act, which is also mandatory in nature and the violation of the same also amounts to clear vitiation of the whole prosecution case. (3) The charge framed and tried against the appellant for the offence under Section 20(b)(i) of the N.D.P.S.Act cannot at all be maintained for the very reasoning that the prosecution has deliberately failed to prove that what was recovered from the appellant on the fateful day was has-hish and the material recovered was only a substance of Ganja, covered by the definition under Section 2(c) and if at all any offence is indicated, it must be under Section 27 of the Act for which the punishment to be awarded is below one year and for the said ground also the impugned judgment has become vitiated. (4) The Bar has projected certain improbabilities inherent with the claim of the prosecution, namely, that the appellant had tried to run away and while boarding the bus, he stumbled down and sustained injuries and that the recovered contraband was duly packed and kept under the seal affixed with the button of the Constable, though the accused and the contraband were brought to the Police Station and then the appellant was sent for treatment and the contraband was sent to the Court after registering the case by P.W.6 himself and would attack them by contending that if the office seal is very much available at the Station itself, which is about one kilometre distance from the place of occurrence, at the worst, it is highly improbable that the investigating agency to have a mark of the sample and package used the button seal of the Police Constable, which is uniform throughout the State and that this aspect gives rise to not only a grave, but also a serious doubt about the prosecution case. According to the learned counsel, the claim of the prosecution with regard to the injuries found upon the accused and the reason for such injuries with the explanation is too far to believe and cannot at all be accepted for the simple reasoning that the height of the foot-board of a parked bus will be about 2 to 3 feet from the ground level and that while so, if the appellant had tried to board the bus with heavy speed or fastly and stumbled down, may be fractures in one of the legs of the appellant is possible, if the evidence of P.Ws.1, 2 and 6 is considered very meticulously. The two fractures found on the ankles of both the legs of the appellant could not at all have been possible and to this extent it is patently clear that the prosecution has suppressed the true facts happened and has foisted a false case in order to book the accused to the offence under the draconian law. 10. On the other hand, the learned Government Advocate, Mr. 10. On the other hand, the learned Government Advocate, Mr. A.N.Rajan, for and on behalf of the State, would controvert every one of the said contentions and was very firm in claiming that the legal option expected to be given to the accused/appellant before his person was searched under Section 50 of the Act has been clearly spoken to by P.W.1 and P.W.6 and that it is manifest from their evidence that the appellant had refused to exercise his option, which was followed by the search made by P.W.6 and resulted in the recovery of M.O.3 and M.O.4 under the cover of Ex.P1. Placing reliance upon the Chemical Analysis Report and the evidence of the Doctor, the Court Assistant and the Investigating Officer, the learned Government Advocate would contend that the prosecution has succeeded in its mission of establishing the guilt of the accused beyond all reasonable doubts and accordingly he would justify the finding and conclusion of the learned Special Judge. 11. In the context of the said rival position, the only question that arises for consideration before me is whether the Court below is justified in finding the appellant guilty for the offence charged and tried by rendering the impugned judgment holding that the prosecution has established the guilt of the accused beyond all reasonable doubts. 12. As has been adverted to already, the consistent claim of P.W. 1 and P.W.6 is that P.W.6 had asked the appellant as to whether his person was to be searched before the nearest Magistrate or a Gazetted Officer of that area before the recovery of the contraband and his arrest and that since the appellant had refused to exercise his option, it was followed by the recovery. It was the consistent case of the prosecution that the legal option provided under Section 50 of the N.D.P.S. Act has been given to the appellant, but he had refused to exercise his option. But the gamut of the prosecution, however, goes to show that the appellant had voluntarily produced M.Os.3 and 4 from his custody to P.W.6, which was recovered under Ex.P1, attested by P.W.2 and another. There was no material placed before the Court to convince the Court of Law for having complied with the mandatory obligations of the Police Officer, who seized the contraband as per Section 50 of the Act. There was no material placed before the Court to convince the Court of Law for having complied with the mandatory obligations of the Police Officer, who seized the contraband as per Section 50 of the Act. The oral claim of P.Ws.1 and 6 cannot at all be believed for the very reasoning that there was no indication either in the case diary or anything in writing or otherwise that the legal option was given to the appellant, which he declined to exercise. Be that as it may, when the appellant/accused had voluntarily taken out the contraband from his custody and produced the same to the Investigating Officer, I am rather surprised to see as to where exists the need to provide the legal option to be exercised by the appellant. If the appellant had voluntarily surrendered the contraband to P.W.6 in the presence of P.W.1, then one cannot dispute that it is a mere case of simple recovery. The concept of search has not at all come into picture at any point of time. The prosecution was so silent about this inconsistent and inconvenient position and has not adduced any legal evidence in this regard. If the claim of P.Ws. 1 and 6 in this regard that the appellant voluntarily produced M.Os.3 and 4 is accepted, then their claim that P.W.6 had informed the appellant about the exercise of his option for his personal search before the Gazetted Officer or the nearest Magistrate will not come into picture for any reason for there existed no necessity or occasion for P.W.6. However, in this context, P.W.6 and P.W. 1 were firm in claiming that they had complied with the mandatory duty, which is palpably false. If two views are possible to be extracted from the available legal evidence and as a result of which, there exists a doubt, the settled position of law is, that doubt derived from the two inconsistencies should always go in favour of the accused and certainly not in favour of the prosecution. Having thus identified the legal laches, namely, the non-compliance of the legal mandate provided under Section 50 of the N.D.P.S. Act following the Apex Court ruling laid down in State of Punjab v. Balbir Singh 1994 S.C.C.(Cri) 634, the whole prosecution in the instant case has become vitiated. 13. Having thus identified the legal laches, namely, the non-compliance of the legal mandate provided under Section 50 of the N.D.P.S. Act following the Apex Court ruling laid down in State of Punjab v. Balbir Singh 1994 S.C.C.(Cri) 634, the whole prosecution in the instant case has become vitiated. 13. With regard to the second contention raised by Mr.Veeraraghavan, I feel it relevant to advert to Section 57 of the N.D.P.S.Act, which runs like this:- “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. In the above cited case law, that is, State of Punjab v. Balbir Singh, 1994 S.C.C. (Cri) 634, the Supreme Court has observed as follows:- “On prior information the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non- compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Section 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case.” .15. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case.” .15. I have had an occasion to consider the consequences of the non-compliance of the obligations spelt out under this section in State by Intelligence Officer, NCB, South Zone, Madras v. P.Raja Singh, 1994 (1) Crimes 990 and observed at page 994 as follows:- .“The minimum understanding of this section of law clearly postulate the fact that a person, who makes any arrest and seizure shall be deemed to be the investigating officer, is a person, who was present throughout the search conducted and the houses were searched, seizures were made and things were recovered by preparing the Mahazars and attesting. The word any person employed in this section clearly denotes the superior officer on whose commands and supervision, the whole search seizure and other opera tions have gone is deemed to be the person, which is in the instant case the Superintendent of Narcotic Drugs Mr.Chandrasekaran. If that is so, since he has attested the same and as evident from the operative portion of the Mahazar, he was throughout in whose command and supervision the entire searching operation was being done and that, therefore, he is deemed to be the investigating officer in this case The rationale lies behind Section 57 is manifest for the reason of the fundamental right enshrined in Article 21 of the Constitution to a citizen and this right is an extremely valuable one which the Legislature has for specific reason deliberately incorporated under Section 5 of the Act itself. Making of the report of the arrest and seizure under the Act by the person who did it to the immediate superior officer within 48 hours is a solemn act to be carried out dutifully by every officer who are designated for that specific purpose and that has to be remembered always by every investigating agency and avoiding the same for any reason cannot be considered in the eye of law as a tenable one. It is clear that the officer making any arrest or seizure under the Act makes the full report of the same to his immediate superior within 48 hours would actually mean that there would not be any exaggeration or connection thereafter and which was not at all possible in the case of prosecution. Perhaps for this important and valuable safeguard to save the innocent person from being subjected to unnecessary harassment, the Legislature incorporated such wordings and it provided the above section of law in such a manner. In short, this provision has been made out with a view to have a check on the Investigating Officer and that on receipt of such Special Report, it is deemed that Superior in the Department is expected to keep check on the Investigating Officer and that therefore, the immediate Superior Officer means as per the inductment of the Legislature, the official superior of the Department only.” .16. Looking upon the evidence and facts of the instant case also I would like to add my preference with the view held by me on an earlier occasion which deserves no reconsideration for the very reasoning that it stands always for a good object and purpose. It is noticed that P.W.6 had claimed that with regard to the seizure of the contraband and the arrest of the accused/appellant and about the whole case he has sent the report to the immediate officer. But it is not known whether he has sent the report either in writing or orally or by Telex or by Telephone or any other mode. It is made patently clear that this mandatory obligation spelt out under Section 57 of the Act has not at all been complied with by P.W.6 who is always expected to perform his duties in accordance with law and procedure. It is not known as to why he has not fulfilled his part of the mandatory obligations. His immediate superior officer was not at Kodaikanal, but he was having his office at Nilakottai which is at a far off place having jurisdiction for the Kodaikanal area. If that was the position, it is not at all safe to accept the evidence of P.W.6 that he had intimated his superior officer about the seizure of the contraband and arrest of the accused. If that was the position, it is not at all safe to accept the evidence of P.W.6 that he had intimated his superior officer about the seizure of the contraband and arrest of the accused. Keeping in view the ratio held above and applying it to the facts of the instant case, I am of the firm view that the case of the prosecution has become vitiated on the second ground also for having not complied with the mandatory obligation spelt out in Section 57 of the N.D.P.S. Act. 17. Coming to the fourth and the last ground, there is some force in the argument advanced by Mr. Veeraraghavan, the learned counsel, with regard to the improbabilities inherent in the prosecution case and that the prosecution has suppressed the true incident that had happened, but has come out with a case with false suggestion. The reason being, it is the common knowledge that the foot-board of a parked transport bus will be at a height of 11/2 to 2 feet from the ground level and this can be taken judicial notice by the Court and it is also possible that if a man tries to climb the foot-board hurriedly in a haphazard manner negligently, he will fall down and thereby sustain the injury. In the instant case, the consistent claim of P.Ws.1, 2 and 6 is that on seeing the Police party led by P.W.6, the appellant tried to run away and in the said sojourn he tried to board the bus, stumbled down and sustained the injury. When the injured was examined by the Medical Officer, Kodaikanal, only one injury was identified. On the contrary, the claim of the appellant, who is a foreign national on tour in India, by filing a written argument, is that there was scuffle and melee between him and Police Personnel on the roof of the bus at the relevant time on the day of the occurrence, which resulted him in losing the balance and that therefore to avoid the fall, he jumped from the top of the bus to the ground and whereby he sustained the injuries. The roof of the bus will be ordinarily 10 to 15 feet from the ground and if a man of middle age happens to jump or fall down from such a height, it is possible for him to sustain either fracture or bleeding injury in both the legs or separately. Therefore, the claim of the accused in this case seems to be more probable and acceptable, but at the same time, the possibility of the occurrence as per the claim of the prosecution is too remote and for which there is no positive evidence adduced in this regard and no independent witness has come forward to speak about the occurrence as claimed by the prosecution. P.W.3 disclaims any knowledge in this regard. It is noticed that the recovered contraband under Ex.P1 was claimed to have been sent with the button seal of P.W.1 or the Constable working under P.W.6. As contended by the Bar for the appellant, if the Police Station is situate just within a kilometre, and after the recovery of the contraband, the case was registered in the Police Station, then it is not known as to what was the need for the investigating agency to affix the Police button seal over the seized contraband, which was allegedly kept in a polythene pack and produced by the appellant, instead of putting the S.H.O. seal. There was no acceptable explanation for the said deviation of the procedure. It is admitted that the button seal of the Police throughout the State is one and the same and similar in nature and under the said context one cannot distinguish that the seal belongs to the particular Police Station. In this regard also there is some force in the argument advanced on behalf of the appellant for the reason it creates a grave and serious doubt in the prosecution case. Therefore, having considered the adduced evidence, I am fully constrained to believe the contentions of the learned counsel on the fourth ground and hold that the prosecution has suppressed the real incident happened and come forward with the concocted suggestion on which ground also the prosecution case his to all to the ground. 18. Therefore, having considered the adduced evidence, I am fully constrained to believe the contentions of the learned counsel on the fourth ground and hold that the prosecution has suppressed the real incident happened and come forward with the concocted suggestion on which ground also the prosecution case his to all to the ground. 18. In view of the major three grounds above referred to, as I had given my finding holding that the prosecution has become vitiated as a whole and failed to prove the guilt of the accused/appellant, the third ground about the offence, whether it is one under Section 20(b)(i) or 27 of the Act does not assume any significance and for the said reason, I do not propose to give any finding on that score. But however, in short to say, after having considered the whole gamut of the case with the adduced legal evidence and the rival contentions, I am fully satisfied to hold that the prosecution has totally, miserably and virtually failed to prove the guilt of the accused beyond the realm of doubt and there is inherent serious doubt in the prosecution case and that should always go in favour of the accused and accordingly the accused/appellant is entitled to be acquitted from all the charges for which he was tried and convicted. If the matter is viewed in this angle, for all the reasonings given above, the various findings and conclusion arrived at by the learned Special Judge are not correct and his approach appears to be erroneous and not on par with law. The learned Judge has mistook the settled concept of law on the mandatory provisions of Sections 50 and 57 of the N.D.P.S.Act, which approach cannot at all be countenanced. On established facts also, the conclusion and findings arrived at by the learned Special Judge to base the conviction are not correct and not on par with law and therefore, they are liable to be set aside. 19. In the result, for all the reasonings given above, this appeal succeeds. The conviction and sentence recorded by the learned Special Judge, Madurai, under the N.D.P.S.Act, in C.C.No.292 of 1994 on 10. 1994 against the appellant/accused are hereby set aside and consequently he is acquitted of all the charges and set free. Fine amount, if paid, is ordered to be refunded. The conviction and sentence recorded by the learned Special Judge, Madurai, under the N.D.P.S.Act, in C.C.No.292 of 1994 on 10. 1994 against the appellant/accused are hereby set aside and consequently he is acquitted of all the charges and set free. Fine amount, if paid, is ordered to be refunded. The appellant/accused being the Irish National is entitled to get the return of M.O.1 and M.O.2 and the trial Court is hereby ordered to return them back immediately to the appellant/accused, if approached. 20. In the light of my judgment rendered in the appeal itself, I do not find any reasoning or ground still exists for considering Crl.M.P.No.260 of 1996 filed on behalf of the appellant under Section 391 of the Code, which is accordingly dismissed as unnecessary.