KALYAN JYOTI SENGUPTA, J. ( 1 ) THE appeal has been preferred against the Judgment and sentence dated 16th December, 1997 passed by the learned Sessions Judge, A and N Islands, Port Blair in Sessions Case No. 15 of 1993. ( 2 ) THE convict/appellant arraigned for the charges under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the said Act ). ( 3 ) THE learned Trial Judge upon the facts finding held the appellant guilty and convicted her under the aforesaid section to undergo rigorous imprisonment for a period of 4 years and to pay fine of Rs. 10,000/- in default to undergo rigorous imprisonment for a further period of six months. ( 4 ) THE case of the prosecution is summarized as under:one Mohammed Aslam, Sub-Inspector of Police and SHO, Central Crime Station, being PW-3, on 3rd December, 1992 along with Head Constable 67, viz. , R. K. Nair, LHC 680, PC 456, PC 863, PC 1383, PC 695 and LPC 995 Magde- leena went on surveillance duty at Haddo wharf. At the time of harbouring of the ship MV. Nicobar which was then coming from Vishakapattanam at about 9. 15 a. m. an information was received that one lady who was coming from Vishakapatnam by the said vessel was carrying narcotic drugs. On such information the said Sub-Inspector procured two independent itnesses namely, one Shri V. K. Balan, Tehsildar, Port Blair being PW-2 and one Shri S. Manoharan, a staff of the Shipping Corporation of India being PW-1 and requested them to be present. As soon as the said vessel arrived at the Haddo wharf the said police party led by the said Sub-Inspector, being PW-3 could detect the accused, who then wore yellow saree and green coloured blouse, the accused at the time of disembarking from the said vessel was having a green coloured steel trunk in her right hand and black coloured small bag in her left hand. The said Inspector, PW-3 then and there asked the lady police constable 995 Magdeleena to intercept the accused. Accordingly, the said lady police constable stopped the accused/appellant and she was explained by the police constable No. 456 K. Vhashiam (PW-4) in Telugu language that they were police personnel. The said Inspector, PW-3 then and there asked the lady police constable 995 Magdeleena to intercept the accused. Accordingly, the said lady police constable stopped the accused/appellant and she was explained by the police constable No. 456 K. Vhashiam (PW-4) in Telugu language that they were police personnel. Upon such identity being disclosed the said Sub-Inspector, PW-3 told through the said Telegu knowing Constable, PW-4 to the accused that he intended to search the bag in her possession as the same was suspected to contain narcotic and/or psychotropic substance. She was also further told that whether she was desirous of getting herself searched before a Gazetted Officer or a Magistrate. The said accused, however, did not incline to be searched in presence of the Magistrate or any Gazetted Officer. Thereafter, the said Police party being led by the said Sub-Inspector PW-3, offered themselves to be searched by the accused in presence of the witnesses and it was done. No incriminating material was found in the possession of the police party. The lady constable Magdeleena under instruction of PW-3 demanded the key of the trunk from the accused, which she instantly obliged by handing over the same through the lady constable to the said Sub-Inspector. The said Sub-Inspector opened the trunk in presence of the aforesaid two independent witnesses PW-2 and PW-1. Some sarees and other wearing apparels inside the trunk at the first instance and beneath the same the said de facto complainant found upon removal of those clothes two pink coloured polythene bags. On opening those two bags dry-leaves like Ganja were found. Upon smelling the de facto complainant found the said dry leaves were to be ganja (Indian hemp ). He showed the contents of the two polythene bags to the said independent witnesses who also smelt the leaves and they were also of the opinion that the same were ganja. The said materials were thereafter weighed by a weighing instrument and it was found that quantity of the said ganja in aggregate was 7. 650 Kgs. which were kept segregated in the aforesaid two bags as 4. 700 Kgs. in the first packet and 2. 950 Kgs. in the second packet. Out of the aforesaid total quantity, 100 gms. of ganja were taken out from each of the two packets as a sample for chemical examination. 650 Kgs. which were kept segregated in the aforesaid two bags as 4. 700 Kgs. in the first packet and 2. 950 Kgs. in the second packet. Out of the aforesaid total quantity, 100 gms. of ganja were taken out from each of the two packets as a sample for chemical examination. The aforesaid sample after being properly packed and sealed in presence of the witnesses were sent for chemical examination. On the packets the signature of the witnesses and the accused were obtained. Two polythene packets containing ganja which were recovered from the trunk of the accused were seized with sealed impression MAS in presence of the witnesses. After recovery of the same the seizure list was prepared and the same was signed by the said Sub-Inspector in presence of the witnesses. The contents of the seizure memo had also been read over and explained to the accused appellant by the Telegu knowing police constable. The accused thereafter signed the seizure list and a copy whereof was also supplied to her. The entire exercise as above was also explained to the accused through the Telegu knowing constable. Accordingly, she was asked to produce any authority or licence for carrying and possession of such ganja. She could not produce any licence or permission. Thereafter, the said M. Aslam, being the Sub-Inspector took the accused and seized articles to Aberdeen Police Station. Thereafter a formal FIR was lodged with Aberdeen Police Station against the accused/appellant. ( 5 ) SUBSEQUENTLY the appellant was granted bail by this Court. On receipt of the report of the chemical examination of the said sample the Investigation Officer being PW-9 conducted investigation and charge-sheet under Section 20 (b) (i) of the said Act was filed. Accordingly, charges under the aforesaid section was framed. The prosecution examined as many as nine witnesses, but the defence produced none. ( 6 ) MR. B. K. Das, the learned lawyer, appearing for the appellant/accused attacks the judgment and sentence of the learned Court below on the following grounds and points:- (I) The entire trial culminating in conviction is vitiated as there was total non-compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the said Act ). B. K. Das, the learned lawyer, appearing for the appellant/accused attacks the judgment and sentence of the learned Court below on the following grounds and points:- (I) The entire trial culminating in conviction is vitiated as there was total non-compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the said Act ). (II) The accused/appellant was not informed of the charges as there was none to explain the reasons for searches and further contents of the seizure list, viz. , Panchnama were not in Telegu language which is the only known language of the appellant/accused. He submits that story of explaining reason for searches in Telegu language by a Telegu knowing constable is absolutely myth, as the said constable does not know telegu language. (III) No lady police personnel was present and in absence of the lady police constable the searches were carried out although admittedly the appellant/accused is a woman. It is a mandatory provision under the law that woman cannot be searched otherwise than by a lady police constable and this procedural safeguard is not a mere formality but this is legislative mandate keeping in view the observance of modesty and privacy of woman accused. ( 7 ) THE aforesaid failure in complying with the statutory requirement under Section 50 of the said Act has also been taken note of in the judgment of the Division Bench while granting bail of the appellant/accused. He also submits that this Court while granting bail was of the prima facie view and/or opinion that there are reasonable grounds for believing that appellant was not guilty of the offences as charged and she is not likely to commit any offence. As such this Court granted bail albeit the rigorous provision of the Section 37 of the said Act. The observation and findings of the Division Bench of total non-compliance of Section 50 of the said Act operate as binding precedent to hold that entire prosecution falls to the ground. ( 8 ) MR. Das, in support of his submission, has cited and relied on following decisions:- (I) 1995 (3) SCC 610 (sic) (II) 1995 Supple 4 SCC 256 (III) AIR 1994 SC 1872 : 1994 Cri LJ 3702 (IV) 1981 (II) SCC 427 : 1981 Cri LJ 288. ( 9 ) MR. ( 8 ) MR. Das, in support of his submission, has cited and relied on following decisions:- (I) 1995 (3) SCC 610 (sic) (II) 1995 Supple 4 SCC 256 (III) AIR 1994 SC 1872 : 1994 Cri LJ 3702 (IV) 1981 (II) SCC 427 : 1981 Cri LJ 288. ( 9 ) MR. Das, further submits, that the fact of demand of key from the accused/appellant tantamounts to personal search. Such thing was done without the Magistrate or prescribed Officer being present. Therefore, there was non-compliance of Section 50. The accused/appellant was not even asked in writing or otherwise as to whether she should be searched before a Magistrate or the Officer as mentioned in Section 41 of the said Act. Even in the FIR it is not mentioned whether the appellant was asked and/or requested to be searched by the authorities mentioning in Section 41, as well as, 50 of the said Act. ( 10 ) MR. Das in his argument points out various contradictions in the evidence of the prosecution witnesses which go on to suggest that the appellant has been falsely implicated. He also submits that the seizure list was concocted and/or manufactured later on at the Police Station and the same was got to be signed by the appellant/accused under police custody. It will appear from the observation of the learned trial Judge in the evidence that number of sarees which were taken out from the sealed trunk in the Court do not tally with the number of sarees mentioned in the seizure list. Moreover, there was no evidence to show that the steel trunk containing ganja belonged to the appellant/accused. Lastly, he argues that this case was not initiated by lodging any FIR with the notified and recognised Police Station but with the office of CCS. ( 11 ) THEREFORE, he submits that the entire prosecution is based on false and concocted case and in fact, the appellant/accused was not carrying any steel trunk and nor there was any ganja in her possession. It has been further argued that the person who is alleged to have explained the grounds for her arrest and the contents of the seizure list in Telegu language, did not know Telegu and it will appear from his evidence itself. It has been further argued that the person who is alleged to have explained the grounds for her arrest and the contents of the seizure list in Telegu language, did not know Telegu and it will appear from his evidence itself. ( 12 ) THEREFORE, he submits all throughout the appellant/accused was kept in dark about the contents of the charge, as well as, reasons for her arrest. So the entire prosecution resulted in conviction is liable to be quashed and/or set aside. ( 13 ) MR. Saroop, the learned Public Prosecutor, submits that Section 50 has no manner of application in this case as there was no involvement of personal search. The ganja was found in the steel trunk not in her body. There are many cases where these narcotic drugs and psychotropic substances are kept hidden in the body when such personal search is required to recover the same. In those cases only procedural safeguard is required under Section 50 of the aforesaid Act for carrying out such search. In this case it will appear from the evidence that the ganja was recovered from a steel trunk which was closed under lock and key. On demand the accused/appellant herself handed over the key to the lady constable and who in her turn handed over the same to the Sub-Inspector being PW-3. Therefore, on evidence it will appear that there was no personal search. Moreover, for abundant precaution the appellant/accused was asked in writing by the S. I. being PW-3 as to whether she was desirous of being searched in presence of a Magistrate to which she declined. The said request in writing has been exhibited in this proceeding. No challenge has been thrown as to genuineness of the said documents. Besides, local Tehsildar being PW-2 having Magisterial power was a witness and present when the appellant was interrogated and ganja was found in her possession in the steel trunk. There are as many as four eye-witnesses who proved consistently as to the presence of the lady constable and her role played in recovery of such ganja from possession of the accused/appellant. Therefore, it was not necessary to produce lady constable in order to prove the case. He submits that the decisions cited and relied on by the learned lawyer have no manner of application in this case as fact remains there was no personal search at all. Therefore, it was not necessary to produce lady constable in order to prove the case. He submits that the decisions cited and relied on by the learned lawyer have no manner of application in this case as fact remains there was no personal search at all. ( 14 ) I have heard the respective submission of the learned lawyer. In order to sustain the conviction, I am to enquire into the following points:- (I) Whether there was any non-compliance of Section 50 of the aforesaid Act. (II) Whether the observation made by the Division Bench while granting bail can be of any help in favour of the appellant/accused for quashing the entire prosecution, as well as, conviction. (III) Whether the appellant was in possession of 7. 650 Kgs. of ganja in her possession. (IV) Whether the appellant was having any authority and/or licence and/or permission for having possession and carrying of ganja. ( 15 ) AT the very outset it would be appropriate to record that this argument and/or plea of non-compliance of Section 50 of the aforesaid Act was not taken before learned Trial Judge and the learned lawyer, Mr. Das, categorically admitted before me. More so it does not appear from the judgment of the learned Court below that such argument was advanced. But it is a settled law that the point of non-compliance of Section 50 of the aforesaid Act which goes to the very root of the prosecution, can be taken and urged at the appellate stage and in my view there was no reason to shut out the appellant/accused from urging this point. Upon reasonable interpretation of Section 50 of the said Act it appears to me as it has rightly been pointed out by the learned P. P. , that when there is a situation and/or occasion for carrying out personal search for recovering narcotic drugs and psychotropic substances the procedural safeguard which is mandatory in nature, under Section 50 is required. But in case of recovery of the aforesaid things otherwise than by way of personal search the compliance of the aforesaid Section 50 is not at all necessary. But in that case it has to be proved that such recovery of the aforesaid incriminating article was done otherwise than personal search. Now I am to examine whether in this case there was occasion or reason for carrying out of personal search. But in that case it has to be proved that such recovery of the aforesaid incriminating article was done otherwise than personal search. Now I am to examine whether in this case there was occasion or reason for carrying out of personal search. It appears from the evidences of PWs 1, 2, 3 and 4 that no personal search was carried out, only the steel trunk was searched. Therefore, compliance of Section 50 is not at all necessary in this case. I am unable to accept an apparently absurd argument of Mr. Das that demand of key from the accused/appellant from her and handing over of the same by the appellant/accused tantamount to personal search as contemplated under Section 50 of the said Act. Personal search in my view connotes and means a search which is required to be done by touching any part of the body and/or limb wherein there is possibility of keeping the contraband articles hidden. But for such personal contact and/or touch by another person the same could not be recovered. This exercise of recovery of the contraband articles is a personal search. As I have noted from the evidence that there was no such situation here. So I hold there was no occasion nor any reason for compliance of Section 50 of the said Act. ( 16 ) EVEN I find from the consistent evidence of all the PWs 1, 2, 3 and 4, as well as, documentary evidence that the appellant/accused was asked in writing whether she was inclined to be searched in presence and/or witness of the Officers or Magistrate as mentioned in the Section 50 of the said Act. I further find from the evidence that she has declined. I also find there is a clear mentioning of the aforesaid facts in the FIR, as well as, seizure list, viz. , panchnamas. So I hold even though there was no necessity for compliance of Section 50 still the same has been done in strict sense as required under the law, as well as, the decision of the Supreme Court cited by Mr. Das, viz. , 1995 (3) SCC 610 (sic ). So this judgment does not help Mr. Das's argument. Similarly, the other judgments relied on by Mr. Das, viz. Das, viz. , 1995 (3) SCC 610 (sic ). So this judgment does not help Mr. Das's argument. Similarly, the other judgments relied on by Mr. Das, viz. , 1995 Supple (4) SCC 256, AIR 1994 SC 1872 : (1994 Cri LJ 3702) and 1981 (II) SCC 427 : (1981 Cri LJ 288), have no manner of application in this case. ( 17 ) IT appears from the careful perusal of the judgment of the Division Bench while granting bail the same was considered at a very initial stage and further at that point of time no evidence was brought before the Court. Even it appears from the judgment itself that the observation and findings of the Division Bench was prima facie and/or tentative view and all points were kept for trial on evidence. Therefore, after having evidence the trial Court is entitled and for that matter I sitting in appeal Court am entitled to come to a positive and final findings as to compliance and/or non-compliance of the provision under Section 50 of the said Act. Besides, the observation and/or findings of the Court at the time of granting bail cannot be made a binding precedent at a subsequent stage as at that point of time the Court had the chance and/or scope to see the version of the accused-applicant only asking for bail, but not the version of prosecution evidence. So the aforesaid findings of the Division Bench granting bail cannot be a binding precedent. In the premises said judgment of the Division Bench containing observation and findings in favour of the accused/appellant does not help at all. Therefore, I am entitled not to rely on and nor to take note of the same as a binding precedent. ( 18 ) IT appears from the consistent evidence of PWs 1, 2, 3 and 4 and seizure list that the trunk was under control and possession of the accused/appellant as she handed over the key of her own to the police and upon opening of the padlock an aggregate quantity of 7. 650 Kgs. of ganja contained in two packets, was recovered. It is an admitted position that even it will appear from the answer of the accused to the questions put under Section 313 of the Cr. P. C. , that she disembarked from the Vessel MV. Nicobar which was coming by sea voyage from Vishakapatnam. 650 Kgs. of ganja contained in two packets, was recovered. It is an admitted position that even it will appear from the answer of the accused to the questions put under Section 313 of the Cr. P. C. , that she disembarked from the Vessel MV. Nicobar which was coming by sea voyage from Vishakapatnam. Ownership of the trunk is not the material but the possession, control and use of the trunk wherefrom ganja was recovered, are the material for the purpose of proving the charges. In my view, the case of having possession, transport of ganja have been proved by the prosecution beyond all reasonable doubt. No evidence was adduced on behalf of the defence by bringing any witness substantiating the trunk did not belong to the accused/appellant. ( 19 ) IT appears from the evidence that the accused/appellant failed to produce any licence and/or permission for possession, and transportation of the aforesaid quantity of ganja. Therefore, the charges as required under Section 20 (h) (i) of the aforesaid Act has been proved beyond all reasonable doubt. It is true that there are some contradictions in the evidence as to the name of the vessels and further discrepancy in number of sarees between seizure list and those remained in steel trunk. In my view, these contradictions are very trifle in nature and the same do not make any dent to substantial and material evidence to prove the charge. Non-examination of the lady constable does not vitiate the prosecution nor the same can be a basis to entertain any doubt in prosecution case. Having regard to evidence of PWs-1, 2, 3, and 4, I am of the view that PW-4 explained everything in Telegu to the accused. I am unable to accept the argument of Mr. Das that PW-4 does not know Telegu to explain to the accused, as he cannot read or write Telegu. It is not uncommon that one without having any capacity of writing or reading of any particular language, is capable of talking or explaining the things in the same. In this case there was no occasion to read over or write any- thing in Telegu language for the PW-4 to the accused. Even there is no suggestion to PW-4 that he does not talk nor does he know Telegu. In this case there was no occasion to read over or write any- thing in Telegu language for the PW-4 to the accused. Even there is no suggestion to PW-4 that he does not talk nor does he know Telegu. ( 20 ) IN the aforesaid circumstances the findings of the learned Trial Judge holding the appellant guilty is perfectly justified and he has given reasons upon analysis of the evidence and considering all the points taken on behalf of the defence. Accordingly, I affirm the findings of the learned Trial Judge. Now the question remains the quantum of punishment. It appears that the accused/appellant is a housewife and she has been convicted for the first time. She has been recently married. Therefore, this case will be mitigated if the appellant/accused is directed to undergo two years rigorous imprisonment instead of four years and to pay fine a sum of Rs. 2,000/- instead of Rs. 10,000/- and in default of paying such fine she shall undergo rigorous imprisonment for a further period of one month more. Accordingly, the appeal is allowed to the extent of reducing the quantum of punishment as directed above. There will be no order as to costs. Appeal partly allowed.