JUDGMENT - T.K. CHANDRASHEKHARA DAS, J.:---This is an appeal filed by the convicted accused in N.D.P.S. Spl. Case No. 84/91 on the file of Court of N.D.P.S. for Greater Bombay dated 24th June, 1994 whereby the appellant was convicted and sentenced in the following manner : i) He was convicted for 10 years R.I. and to pay fine of Rs. 1,00,000/- (Rupees One Lakh). In default, to suffer R.I. for two years under section 21 r/w 8(c) of the N.D.P.S. Act. ii) He was convicted and sentenced R.I. for 10 years and to pay fine of Rs. 1,00,000/- (Rupees One lakh) In default, R.I. for two years under section 23 r/w 28 and 8(c) of the N.D.P.S. Act. iii) He was convicted and sentenced R.I. for 3 years and to pay fine of Rs. 10,000/- (Rupees Ten Thousand) and in default R.I. for six months. Substantive sentences are directed to run concurrently. 2.According to the prosecution, on 21-11-1990, Mr. Anil Menon attached to N.C.B. as Intelligence Officer alongwith Assistant Director Mr. Rohatgi and I.O. Mr. Dange, received Head Intelligence report containing one ZAIRE National named Kalema Tumba travelling by Ethiopian Airlines No. ET-641 which was expected at 6.30 a.m. on 22-11-1990 and was likely to carry sizeable quantity of heroin in his person or his checked in baggage. P.W. 1 reduced his intelligence into writing and it was discussed with others, particularly, with Dy. Director Mr. R.N. Kakar. On receipt of the intelligence information, officer P.W. 1 and other officers discussed and decided to intercept Kalima Tumba and search his person and his baggage at departure lounge at Sahar Airport, Module II. On 22-11-1990 at about 4-30 a.m., P.W. 1 Assistant Director Mr. Rohatgi, Intelligence Officer Mr. Dange alongwith other staff reached Sahar Airport. Mr. Dange collected the manifest of the flight from Ethiopian Airlines and found out that the Mr. Kalema Tumba was manifested at Sr. No. 98 of the manifest. Immediately officers positioned themselves at the customs checking counter. At 5.30 a.m., Mr. Dange called two panchas, explained the intelligence which is gathered at the purpose. Within a short period, the person, Kalema Tumba came to the counter. On being questioned he disclosed his name as Kalema Tumba. Mr. Dange demanded his travelling documents. No. 98 of the manifest. Immediately officers positioned themselves at the customs checking counter. At 5.30 a.m., Mr. Dange called two panchas, explained the intelligence which is gathered at the purpose. Within a short period, the person, Kalema Tumba came to the counter. On being questioned he disclosed his name as Kalema Tumba. Mr. Dange demanded his travelling documents. He produced his documents and verifying passenger to P.W. 1 and P.W. 2 other officers there confirmed that the same person as in the information intelligence report. The custom officers including P.W. 1 accompanied accused to the baggage of the passenger of the flight which was kept for identification. The appellant-accused identified his baggage as a black colour rexine bag having brown strips on it. It had mark, 'Giviliano' and 'Dorre' which was explained by the accused as Giviliano and Dorre. The bag had also one lock on it and mark on the lock was NA-Titoni with figure III-Baggage tag No. ET 1130062 was also fixed on the bag which tallied with the number of claim tag affixed on the Air ticket of the appellant-accused. When the Custom Officer asked him to open the bag, he opened the bag with his key which he had in his person. After opening the bag the officer found to contain personal things and also four bedsheets. On examination of these bedsheets, they found that one polythene bag each was concealed in between fold of two bedsheets. When polythene bag was removed from the bedsheets and opened, they found it contained brownish powder. Small quantity of powder at random was taken from both the packets and when tested with the field testing kit which they carried, it was prima facie found to contain heroin. This polythene bag was weighed separately. The weight was one Kg. From each bag, the Custom Officer removed 7.5 grams of powder and mixed in a tin container. They took out three samples of 5 grams each from the packets. They put in separate Polythene packets and sealed and further put separate envelopes and sealed with N.C.B. The Customs Officer obtained signature of panchas on all the three sample envelopes and obtained the signature of the accused. Balance quantity of brown powder removed in the Polythene bag and sealed and put in cardboard carton and was packed and sealed with N.C.B. and pasted labels with signature of panchas. Balance quantity of brown powder removed in the Polythene bag and sealed and put in cardboard carton and was packed and sealed with N.C.B. and pasted labels with signature of panchas. Thereafter black colour bag with two bedsheets and lock and key from which contraband was recovered were together put in other cardboard carton by removing baggage and sealed with N.C.B. After obtaining signature of panchas, the said Carton baggage which was affixed was removed and pasted on the blank paper. The panchas obtained signature on the baggage Tag and signature was obtained on the air ticket boarding pass. Thereafter personal search of the accused was taken by P.W. 1. After concluding the panchanama of the seized properly alongwith the accused they came to office at Ballard Pier. Thereafter P.W. 1 prepared a Summons in the name of the accused, signed by Assistant Director purportedly under section 108 of the Customs Act and served on the accused and obtained his signature. After service of summons, statement of accused was recorded by Assistant Director Mr. Rohitji which was transcribed by P.W. 1 as the accused requested P.W. 1 to transcribe the same as his handwriting was not good. Seized property alongwith documents were kept in safe custody of Mr. Dhange. In the evening of 22-11-1990 the accused was arrested by P.W. 1 at 9.00 p.m. The grounds of his arrest were intimated to him and he was lodged in the custody of Azad Maidan Police Station. Thereafter, P.W. 1 made seizure report to the Assistant Director of N.C.B. for perusal. On 1-2-1991 a sanction letter was obtained and on 6-2-1991 P.W. 1 filed a complaint in the Sessions Court. The samples taken were forwarded to Chemical Analyser. On the receipt of C.A's report, it was confirmed that the contraband contained heroin. After trial, the impugned judgment and order was passed by the trial Court which awarded sentences as mentioned in earlier part of the judgment. 3.Mr. Tiwari, the learned Counsel appeared for appellant and Mr. R.M. Agrawal for respondent No. 1 and Mr. S.R. Borulkar, A.P.P. for State. 4.The main contention of the Counsel for the appellant is that section 50 of the N.D.P.S. Act has not been complied with. Mr. 3.Mr. Tiwari, the learned Counsel appeared for appellant and Mr. R.M. Agrawal for respondent No. 1 and Mr. S.R. Borulkar, A.P.P. for State. 4.The main contention of the Counsel for the appellant is that section 50 of the N.D.P.S. Act has not been complied with. Mr. Tiwari, the learned Counsel for the appellant submits that the section 50 of N.D.P.S. Act is violated in asmuch as the appellant-accused was not told that in case he wanted he could be searched in the presence of Gazetted Officer or Magistrate as envisaged under section 50 of the N.D.P.S. Act. We have to reject the contention of the Counsel for the simple reason that seizure effected in this case was not from person of the accused but from the check in baggage of the accused. As held by this Court and Supreme Court, that the check in baggage is not check of person and therefore search of the baggage of the appellant will not amount to personal search. Therefore it goes without saying that unless then search was from the person, procedure prescribed under section 50 need not be observed. Therefore, we find no merit in the contention of the Counsel for the appellant that since search and seizure of the contraband was from the person of the accused section 50 was violated. 5.Another contention of the Counsel for the appellant is that there is no proper identification of the accused. The learned Counsel Mr. Tiwari tried to make out in case with reference to manifest of the flight. He pointed out that per statement of P.W. 1 that the accused-appellant name was entered in the manifest at Sr. No. 98, whereas the copy of the manifest produced in this case in evidence (Exh. 17) indicates that against Sr. No. 98 the name was shown as KALEMA N. and therefore, even identity of the accused was not properly established in this case. It is true that Sr. No. 98 at Exh. 17 mentions KALEMA N. but at the same time at Sr. No. 97, we find an entry KALEMA N. TUMBA was entered. Therefore, the accused was expected to board the flight on the day at Sr. No. 97 of the manifest. Further on questioning by P.W. 1, the accused answered his name KALEMA N. TUMBA. No. 98 at Exh. 17 mentions KALEMA N. but at the same time at Sr. No. 97, we find an entry KALEMA N. TUMBA was entered. Therefore, the accused was expected to board the flight on the day at Sr. No. 97 of the manifest. Further on questioning by P.W. 1, the accused answered his name KALEMA N. TUMBA. Apart from that, the appellant has identified his baggage and he opened the bag using the key which was in his possession. Therefore, the appellant's contention on identity of the person cannot be accepted. He was trying to capitalise on a genuine mistake made by P.W. 1 while he was examined. As regards the identification of the accused we have evidence on record of P.W. 4 Suresh H. Khimani who is receptionist in Chembur Hotel. He had identified the accused and also his signature put in the Register at Chembur Hotel Room No. 208. It has been established beyond reasonable doubt that the accused KALEMA N. TUMBA had been manifested at Sr. No. 97 in the flight ELT No. ET-641, dated 22nd November, 1990 at 6.20 hours. Accordingly this submission of Mr. Tiwari fails. 6.Next contention of the Counsel for the appellant is that the samples were found to be in bundle and therefore, creating doubt in the mind whether samples which were sent to C.A., were those which were produced before the Court. For this, we have the evidence of P.W. 2, who sent the sealed packet for analysis and also to Customs laboratory for analysis . P.W. 3 Tanaji G. Adhav who acted as Pancha for seizure panchanama has proved the manner in which the samples were taken and sealed the cover, put his signature. He had identified the signature on the label pasted on the packet. His evidence could not be shaken in the cross-examination on behalf of the accused. Mr. Sidharam who was also another pancha has also spoken about the manner in which the recovery was made from the possession of the accused and samples were taken and how they were sealed. This evidence could not be impeached by the accused. Hence, we reject this contention of the Counsel for the appellant also. Mr. Sidharam who was also another pancha has also spoken about the manner in which the recovery was made from the possession of the accused and samples were taken and how they were sealed. This evidence could not be impeached by the accused. Hence, we reject this contention of the Counsel for the appellant also. 7.The learned Counsel for the appellant further submits that the intelligence information was not reduced in writing as also not sent to the superior officer consistent with the provisions of section 42 of the N.D.P.S. Act. We have already noted that the information report was reduced in writing by P.W. No. 1 and P.W. 1 has also spoken that he received the intelligence report while he was in the company of the Assistant Director Shri Kakar and the arrangement for intercepting the accused and also panchas as made after discussion and consultation with the superior officers of P.W. 1 who were present at the time of the receipt of intelligence information. Therefore, merely because the information was not sent to the immediate superior of P.W. 1, we cannot jump upon a conclusion that section 42 which is mandatory is violated. When the Intelligence information is received in the immediate presence of superior Officer and there is a discussion with him about interception of the accused, we have no hesitation in holding that merely because the information has not been sent to superior Officer, it cannot be held that section 42 is violated. We find in the above circumstances that there is a substantial compliance of section 42 of the N.D.P.S. Act and Counsel for the appellant is not right when he urges that these has been a violation of section 42 of the Act in this case. 8.The learned Counsel for the appellant submits that it is fatal to the prosecution case since the analyst has not been examined to prove the analysis report particularly, when Analyst report does not contain details of the test. He also relied upon the Judgment of Gujrat High Court reported in II (1995) CCR 146 (DB). In that decision, the Division Bench has held that it is duty of the public analyst analyzing muddemal sample, to specifically mention the scientific tests conducted and the results derived therefrom. He also relied upon the Judgment of Gujrat High Court reported in II (1995) CCR 146 (DB). In that decision, the Division Bench has held that it is duty of the public analyst analyzing muddemal sample, to specifically mention the scientific tests conducted and the results derived therefrom. If by chance in a hurry or haste or through oversight, the scientific tests are not mentioned in the report, that is fatal to the prosecution as any ipse-dixit cannot be accepted in criminal trial as it has no probative evidentiary value in the eye of Law. We have here Exh. 37 Analyser's report, which contains the information that the analyst has received the sample as sent by the Narcotics its conforms to the particulars of the sample, seal and signature etc. It also contains the result of the analyst. It is true the report is cryptic. Such cryptic report of analyst, particularly when the analyst was not examined to prove the report is definitely not safe to be relied upon. The public analysis report containing only result will not be acceptable unless there is other corroborative evidence either by the analyst or by independent evidence that the contraband article contained objectionable substance. But however, in present case, the prosecution will not fail merely because analysis report is a cryptic one and does not contain the required particulars to inspire confidence. We have already pointed out that no serious challenge has been made about the contents of the contraband article in this case by way of cross-examination. Top of all, we have the statement made by the accused under section 108 of the Customs Act wherein he admitted his guilt; though it was retracted subsequently. While, even retracting the statement, he did not make his case that substance which was recovered from him does not contain heroin. In the absence of any suggestion or contention made by the accused during the entire proceedings either before Customs Authority or before the Court the circumstance that merely because Analyser's report is cryptic would not advance this contention. Unless a serious dispute was raised either at the time of the seizure or at the time of cross-examination about the contents of the material seized, the prosecution cannot be thrown to the wind on the ground that analysts report is cryptic and does not contain particulars. Unless a serious dispute was raised either at the time of the seizure or at the time of cross-examination about the contents of the material seized, the prosecution cannot be thrown to the wind on the ground that analysts report is cryptic and does not contain particulars. (a) Hence all the points urged by the Counsel for the appellant cannot be accepted and therefore, the appeal is liable to be dismissed. 9.Mr. Borulkar, the learned Counsel appearing for State has submitted that the search was conducted in the public place and therefore, restrictions put to the officers to reduce the information received in writing and to send the same to the superior officer need not complied with as required by section 42 of the N.D.P.S. Act. He further submits that as the seizure was made in public place which it would be governed by section 43. For the reasons stated by us in other part of the judgment there is substantial application of section 42 in this case and, therefore, the contention of Mr. Borulkar need not be considered in this case. 10.The learned Counsel for appellant further submits that the appellant was in Jail for about 7 years and he must have suffered substantial sentence by this time. However, because of the failure to remit the fine, he has to serve total period of 4 years and 6 months besides substantive sentence. He submits that taking into consideration that the appellant was in Jail he was not in a position to remit 2 lacs and Rs. 10,000/- which is awarded as fine a lenient view may be taken, with regard to the fine. Considering the request made by the Counsel and other circumstances of the case, we find the appellant may be given a reasonable reduction of the sentence imposed in default of fine. 11.In view of this, we reduce the sentence awarded by the Court below in default of fine in the case of counts 1 and 2 to 6 months each and in case of counts No. 3, to one month. Therefore, the sentence of the Court below stands modified as shown below :--- A) Under section 23 and under section 28(8)(c) of the N.D.P.S. Act R.I. for 10 years and to pay a fine of Rs. One lakh, in default to suffer R.I. for six months. Therefore, the sentence of the Court below stands modified as shown below :--- A) Under section 23 and under section 28(8)(c) of the N.D.P.S. Act R.I. for 10 years and to pay a fine of Rs. One lakh, in default to suffer R.I. for six months. B) Although we maintain the conviction, the Jail sentence, and the quantum of fine imposed on the appellant and but we reduce the sentence imposed in default of payment of fine in the manner mentioned in para 11. C) Under section 21 r/w 8(c) of N.D.P.S. Act R.I. for 10 years and to pay a fine of Rs. one lakh and in default to suffer R.I. for six months. D) Under section 135(1)(a) of the Customs Act he was sentenced to suffer R.I. for 3 years and to pay a fine of Rs. 10,000/- in default to suffer R.I. for 1 month. Substantive sentences, however, are to run concurrently. 12.In the result, this appeal is partly allowed and partly dismissed. Sentences awarded by the Court below are stands modified as shown above. Appeal partly allowed.