Judgment The appeal is preferred by the accused against the conviction and sentence imposed by Special District Judge, Madurai in C.C.No.284 of 1993 dated 18.3.1996. 2. The charge against the appellant/accused is that on 19.7.1990 in the early morning, the Customs Preventive Unit, Tuticorin, while conducting coastal patrol in the area around New Port, Tuticorin noticed one Vallam and that they intercepted that Vallam after hard chase and opening of fire and that they noticed one person jumped from Vallam and escaped from the scene and another person namely the first accused Stanley was found in the Vallam and that they found two parcels in that Vallam and that on examination of the said parcel, they found brown sugar worth about Rs.66 lakhs and that therefore, the accused is liable to be punished under Secs. 8-C, 21 of NDPS Act, Secs.29, 23, 25 and 135(1)(a)(ii) of the Customs Act. 2. The Superintendent of Central Excise, Customs filed the complaint against the appellant/accused and another accused Raghavan. As the said accused Raghavan absconded during the pendency of the proceedings. The case was split up against him. 3. The appellant/accused denied the charges levelled against him. To prove the charges against the appellant/accused, the complainant has examined P.Ws.1 to5 and marked Exs.P-l to P-29 and M.Os.1 to 4. 4. The case of the complainant as disclosed from the above evidence and document is as follows: P.W.1 is the Superintendent in Central Customs Preventive Unit and he is also a Gazetted Officer. P.W.3 was employed as Inspector in Customs Preventive Unit, Tuticorin during the relevant period. P.W.3 namely Periasamy received an information at about 9.30 p.m. on 17.7.1990 The above information revealed that the appellant/accused was attempting to smuggle Narcotic Drug through Tuticorin coast in the boat belonging to one Peter which contain the number ‘117’. P.W.3 recorded the above information and sent the same in a sealed cover to Assistant Collector. He also informed the said fact to P.W.1 the Superintendent namely, Rajappa. The copy of the information received by P.W.3 is Ex.P-1. Thereafter, P.Ws.1, 3 and others were surveilling the coastal area. But, till early morning of 18.7.1990, no such occurrence took place. When P.W.3 was in his house at about 3.30 p.m. on 18.7.1990 he received another information and he sent the same in a sealed cover to Assistant Collector. The copy of the information received by P.W.3 is Ex.P-1. Thereafter, P.Ws.1, 3 and others were surveilling the coastal area. But, till early morning of 18.7.1990, no such occurrence took place. When P.W.3 was in his house at about 3.30 p.m. on 18.7.1990 he received another information and he sent the same in a sealed cover to Assistant Collector. The above information disclosed that the accused is making arrangement to smuggle Narcotic drug worth about several lakhs in the boat belonging to Peter. P.W.3 informed the said matter to P. W. 1 Ex.P-2 is the copy of the said information on 18.7.1990 at about 6.00 a.m. through one Sethuraj P.W.4 The information revealed that narcotic drugs are being transported in the boat belonging to one Peter through sea. Ex.P3 is the copy of the said information. Thereafter, at about 9.00 p.m. on 18.7.1990 P.W.1 and others proceeded in a boat for conducting surveillance over coastal area. They also proceeded to high sea and watched whether any boat is proceeding from the Srilanka coast. Since no boat emerged from that area. till 12.30 p.m. P.W.1 and others drove their boat towards new port namely. Kol Jatti and at that time, P.W.1 and others were surveilling the area through Binoculars. At about 1.00 a.m. on 19.7.1990, they saw a Vallam at a distance of 2 kms. from Kol Jatti. Then they rushed towards the said boat. On seeing P.W.1 and and others, the above Vallam started moving towards coastal area. Though P.W.1 gave signal to stop the boat, the boat was driven with a speed. Therefore, the officers opened 9 rounds of fire in the air as warning shots. Thereafter, the officers chased the Vallam and caught hold of the Vallam. When they were nearing the Vallam, a person in the Vallam jumped into the sea and escaped. P.W.1 and others found the accused in the Vallam with two gunny bundles. On enquiry, the accused disclosed his name and address. The accused also informed that the person who absconded from the scene is Peter and that he is the owner of the boat. After enquiring the accused, the accused, Vallam and the gunny bags were brought to the old port at about 4.15 a.m. on the same day. P.W.1 requested one Ganesan and Fernando to witness the search. 5. The accused also informed that the person who absconded from the scene is Peter and that he is the owner of the boat. After enquiring the accused, the accused, Vallam and the gunny bags were brought to the old port at about 4.15 a.m. on the same day. P.W.1 requested one Ganesan and Fernando to witness the search. 5. P.W.1 opened the gunny bundles and he found a polythene bag in the bundle which contained 16 cloth covers. Inside the cloth cover another polythene cover was found and inside the above polythene cover, another paper cover was found which contained brown colour powder. Similarly, when they opened the second gunny bag, they found polythene bag which contained 16 cloth bags and each cloth bag contained brown powder. In the cloth pouch also a polythene bag and another kaki colour cover which contained brown colour powder were found. The above bags were given marking as ‘1 to 32’ that is Exs.P-1 to P-32. The cloth pouches are marked as 33-A and 33-B and each packet was found weighing 1kg and the powder in the cloth pouch was measured and each packet weighed half kilo, The total powder weighed 33 kgs. Thereafter, P.W.1 took 5 gms. from each packet for sample and packed the same in a polythene paper, and after packing the polythene paper, a seal was affixed. P.W.1 took 68 samples from the contraband. The samples taken from the contraband were packed and sealed. On enquiry, the accused revealed that the above bags were handed over to him by one Raghavan of Srilanka and that the said Raghavan was staying at Chitra Lodge, Tuticorin. Thereafter, P.W.1 prepared Mahazar in the presence of witnesses under Ex.P-4, P.W.3, wrote the contents of the mahazar, in which the accused and witnesses have affixed their signatures. The copy of the mahazar was also furnished to the accused. 6. Thereafter, P.W.1, and his officials proceeded to inspect the house of Peter at about 8.30 a.m. on 19.7.1990. But the said Peter was not found in the house. But, his son namely Belvam was found there. No incriminating materials were found during the search. P.W.1 also prepared mahazar under Ex.P-5. 7. After conducting search in the house of Peter, P.W.1 directed Inspector Pandian to search the house of the accused. But no incriminating materials were found during the search. Accordingly, a mahazar was prepared under Ex.P-6. But, his son namely Belvam was found there. No incriminating materials were found during the search. P.W.1 also prepared mahazar under Ex.P-5. 7. After conducting search in the house of Peter, P.W.1 directed Inspector Pandian to search the house of the accused. But no incriminating materials were found during the search. Accordingly, a mahazar was prepared under Ex.P-6. Thereafter, P.W.1 deputed his Inspector Muthukrishnan to Chitra Lodge to conduct search in Room No.219. But no incriminating materials was found in that room. The accused namely Raghavan was present in the said room. He was brought to the customs office for further examination. Ex.P-7 is the Mahazar prepared by Inspector Muthukrishnan while conducting search in Room No.219 in Chitra Lodge. 8. P.W.1 received information what Aravindan and Natarajan who were also involved in the offence are staying in Tuticorin and that they also own Maruthi car for the purpose of transporting the drugs and therefore, P.W.1 and his party, searched for them in all the lodges. But, they could not trace them Thereafter, P.W.1 examined the receptionist of the lodge and recorded the statement under Ex.P-8. Ex.P-7 is the extract of lodge register relating to Room No.219. 9. Again P.W.1 and others conducted surveillance in the coastal area at about 9.00 p.m. on 19.7.1990. But they could not find any material during the surveillance. On 20.7.1990, the accused was examined in the customs department by Inspector Pandian under Ex.P-10. The accused also identified Raghavan and the said Raghavan was also examined and the statement was recorded under Ex.P11, At about 4.00 p.m. on 20.7.1990, the accused and Raghavan were arrested Ex.P-12 is the arrest memo, P. W. 1 also prepared a detailed report under Sec.57 of NDPS Act and submitted the same to Assistant Collector under Ex.P-13. As there was bandh on 27.7.90, the accused was produced before Additional Chief Judicial Magistrate on 21.7.1990 Ex.P-14 is the remand report. On 20.7.1990, the seized contraband 34 S2 samples were sent to customs department, Tuticorin under forwarding memo Ex.P16, The remaining powder in 33 packets were sent to godown keeper, Tuticorin for custody with a forwarding note Ex.P-16. Under forwarding from Ex.P-17 seized boat was handed over to Kandaswami for custody. The samples were sent to chemical examination with the test memo prepared by P.W.1, Ex.P-18 is the test memo copy. 10. P. W.2 the Assistant Chemical Examiner received the samples numbering ‘34’. Under forwarding from Ex.P-17 seized boat was handed over to Kandaswami for custody. The samples were sent to chemical examination with the test memo prepared by P.W.1, Ex.P-18 is the test memo copy. 10. P. W.2 the Assistant Chemical Examiner received the samples numbering ‘34’. They also compared the seals in the packet with the seal in test memo. The samples were found marked as PISI to P32S1, P33AS1 and P33PS1. On examination of the above samples, they found that the sample contained Heroin and accordingly, they sent report under Ex.P20. P.W.1 after receiving the chemical report, submitted the sample S2 P11 to P14 to chemical department, Madras to test its quality. The chemical examiner also sent report under Ex.P-20, P.W.1 after receiving the chemical report, submitted the sample S2 Pll to P14 to chemical department. Madras to test its quality. The Chemical examiner also sent report under Ex.P-21. The remaining 30S2 samples were also sent to Customs Department for testing its quality and after conducting the test, they sent report under Ex.P-22. Thereafter, on 5.12.1991, P.W.1 filed petition under Sec.52-A of the Act for taking samples. In the presence of Assistant Collector, 34 samples were taken and the same was affixed with court seal, and in the remaining packets, the seal of P.W.1 was affixed. Ex.P-23 is the proceeding relating to taking samples in the court. The remaining powder was sent to Customs Collector, Tirchy under letter Ex.P-25. Ex.P-26 is the certificate showing the destruction of the remaining powder. Thereafter, P.W.1 submitted the documents and statements to Additional Collector for obtaining sanction. The Additional Collector on perusal of the documents accorded sanction under Ex.P-27. The accused Raghavan absconded while he was brought to Madras. Another accused Peter vacated his house and absconded. P.W.1 filed complaint against the accused and Raghavan under the provisions of NDPS Act. 11. The incriminating materials appearing against the accused were explained to him and the accused denied the same. No evidence was adduced on the side of the accused. 12. On a consideration of oral and documentary evidence, the trial court has held that the accused is guilty under Sec.8(c) read with 21 of the Act and thereafter, the accused was convicted and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.l lakh. Aggrieved on the said conviction and sentence, the accused has preferred this appeal. 13. Aggrieved on the said conviction and sentence, the accused has preferred this appeal. 13. The point for determination is whether the prosecution has established the charge levelled against the accused beyond all reasonable doubt. 14. Learned counsel for the appellant contended that the trial court has not considered about the mandatory requirements enunciated in the Act. He also raised the following contentions. Admittedly, it is the case of the prosecution that they recorded the information into writing and the above writings are marked as Exs.P-1 to P-3. The said documents are only xerox copies and the originals were not produced before the court. The fact that the information was reduced into writing is not at all referred to in Ex.P-28 the complaint. The evidence that P.W.1 and others went to sea to capture the boat itself is doubtful, as the documents relating to boat and the register showing opening of 9 rounds of fire in the sea are not produced. It is contended that if really P.W.1 had prior information about smuggling of contraband, he would have taken independent witness along with him. the documents Exs.P-1 to P-3 are only created at the later stage by the complainant. 15. Regarding statements alleged to have been given by the accused. It is contended by the learned counsel that the above confession were retracted and that the above statements were not given by the accused voluntarily. Learned counsel for the appellant also pointed out discrepancies in the quantum of contraband, and sample taken by P.W.1 and the delay in depositing the packets, Relying upon the evidence of P.W.1 and others, it is contended by the appellant that the evidence of the complainant regarding seizure of the contraband, taking samples of the contraband and sending the same for chemical examination are not satisfactory and as such, there is violation of Secs.52 and 55 of the Act. Learned counsel for the appellant also contended that the requirements of Secs.42 and 50 of the Act were not complied with by the prosecution. 16. On the other hand, learned counsel for the respondent contended that the raid, search and seizure conducted by P.W.1 will come under Sec.49 of the Act and as such, Sec.50 of the Act will not apply. 16. On the other hand, learned counsel for the respondent contended that the raid, search and seizure conducted by P.W.1 will come under Sec.49 of the Act and as such, Sec.50 of the Act will not apply. It is also contended by the learned counsel that only Sec.43 of the Act will apply and that P.W.1 while exercising power under Sec.41(2) seized the vehicle and there is no discrepancy regarding measurement and the quantum of contraband and the quantum of sample. Regarding confession statement, it is contended by the learned counsel for the respondent that the statements were not retracted at the earliest point of time and that under Sec.67 of the Act, the statement or information obtained by competent authority is admissible in evidence. 17. The point for determination is whether the prosecution has established the charge levelled against the accused beyond reasonable doubt. 18. It is the case of the prosecution that P.W.1 the Superintendent of Customs Preventive Department, on prior information captured a vessel called ‘Vallam’ with two gunny bags and that the accused and the vessel were brought to the seashore and that in the customs office, the gunny bags were opened at about 4.15 a.m. on 19.7.1990 and that they recovered and seized the brown sugar found in 32 polythene packets. Prosecution proceeds on the basis that only on prior information they conducted surveillance and seized the boat and recovered the contra band. The trial court has believed the evidence of P.W.1 and other officials in holding that the brown sugar was seized from the accused. 19. Learned counsel for the appellant inter alia contend that the mandatory requirements enshrined in Sec.42 of the Act was not complied with by the complainant. But the prosecution relies upon Exs.P-1 to P-3, the information alleged to have been reduced into writing regarding the commission of the offence. It cannot be gain said that under Sec.42(1) of the Act, the empowered officer if he has a prior information given by any person, that should be taken down in writing. Sec.42 of the Act mandates the empowered officer to send the copy to his immediate superior/official. Learned counsel for the appellant relied upon number of decisions on this aspect. In State of Punjab v. Balbir Singh State of Punjab v. Balbir Singh, A.I.R. 1994 S.C. 1872 the Apex Court has held that Secs. Sec.42 of the Act mandates the empowered officer to send the copy to his immediate superior/official. Learned counsel for the appellant relied upon number of decisions on this aspect. In State of Punjab v. Balbir Singh State of Punjab v. Balbir Singh, A.I.R. 1994 S.C. 1872 the Apex Court has held that Secs. 42(1) and 42 of the Act are mandatory. At page 1888, the Apex Court has held thus: “(2C) Under Sec.42(1) the empowered officer if has a prior information given by any person, that should necessarily taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offence are concealed in any building etc., he may carry out the arrest or search with out a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Sec.42(I) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial” The above decision has been followed by Apex Court in number of cases, The above provision contained in Sec.42(1), (2) of the Act mandate the officer to record the information into writing and send the copy of the same to his superior officer. Sec.42(1) of the Act relates to search conducted between sunrise and sunset. The proviso of Sec.42 authorises the empowered officer, who cannot obtain warrant or authorisation, has reason to believe, may enter and search the building, conveyance or encroached place at any time between sunset and sunrise, after recording the grounds of his belief. While the empowered officer proceeds to conduct search under Sec.42(1) of the Act on the basis of reasonable belief from personal knowledge between sunrise and sunset, he need not record reasons for belief, But, it is clear that when the search is to be conducted between sunset and sunrise, on the basis of reasonable belief from personal knowledge only, the empowered officer has to record reasons for his belief. 20. Learned counsel for the respondent/state contended that only Sec.49 of the Act will apply to this case. 20. Learned counsel for the respondent/state contended that only Sec.49 of the Act will apply to this case. Sec.49 of the Act empowers the officer authorised to stop and search any conveyance if he has reason to suspect that conveyance is about to be used for transport of any narcotic drug. To invoke Sec.49 of the Act, the only requisite is that such officer should have reason to suspect that any provision of the Act is about to be contravened. It is also manifestly clear that the above section does not require that the information should be reduced down in writing and forward it to the immediate superior. 21. There is subtle distinction between Sec.42 and Sec.43 of the Act. Under Sec.43 of the Act any officer or any of the department mentioned in Sec.42 may seize in any public place or in transit any nar- 22. Learned counsel for the appellant contendent that the complainant has not followed the mandatory provisions of Sec.50 of the Act. On this aspect also, learned counsel for the appellant relied upon number of decisions of Apex Court and various High Courts including out High Court. In, A.I.R. 1994 S.C. 1872, referred to above, it is held thus: “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 make him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Sec.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 provision of Sec.50 of the Act has been declared to be mandatory by the Apex Court. The Apex Court has also followed the above decision in Ali Mustafa v. State of Kerala Ali Mustafa v. State of Kerala, 1995 S.C.C. 32. The above case relates to recovery of small packets of charas from the accused who was found sitting with a bag in the railway station. The dictum laid down in, A.I.R. 1994 S.C. 1872 has been followed in Mohinder Kumar v. State of Goa Mohinder Kumar v. State of Goa, A.I.R. 1995 S.C. 1157 and Saiyad Mohammed v. State of Gujarat Saiyad Mohammed v. State of Gujarat 1995 S.C.C. (Crl.) 564. The dictum laid down in, A.I.R. 1994 S.C. 1872 has been followed in Mohinder Kumar v. State of Goa Mohinder Kumar v. State of Goa, A.I.R. 1995 S.C. 1157 and Saiyad Mohammed v. State of Gujarat Saiyad Mohammed v. State of Gujarat 1995 S.C.C. (Crl.) 564. In the latest decision reported in Ran Singh v. State of Haryana Ran Singh v. State of Haryana, 1997 S.C.C. (Crl.) 830, the Apex Court considered the significance of Sec.50 and as held thus: “In the afore-mentioned decision which dealt with the procedural requirements and safeguards of Sec.50 of the Act this Court observed that having regard to the grave consequences that may entail on the charge being proved and the strict sentence and heavy fine that may be imposed under the Act, it is essential that the legislative safeguards contained in Sec.50 should be scrupulously followed by the Investigating officer and the right of the accused to be searched in the presence of a Gazetted Officer or a Magistrate is an important right which cannot be wished away and must be strictly adhered to”. The Apex Court has also followed the ruling laid down in Balbir singh case in T.P.Razak v. State of Kerala T.P.Razak v. State of Kerala, 1996 S.C.C. (Crl.) 57. It is seen from the facts of the above case that the search of the accused revealed a match box with him containing four small packets of brown sugar. In Abdul Rahman v. State of Kerala Abdul Rahman v. State of Kerala, 1997 S.C.C. (Crl.) 1064, the Apex Court has held that even though the search and seizure had been made prior to the decision of the court in, A.I.R. 1994 S.C. 1872, the illegality of the search and seizure as indicated by this Court operates. In State of Punjab v. Jasbir Singh State of Punjab v. Jasbir Singh, 1996 S.C.C. (Crl.) 1, the Supreme Court has held that protection given by Sec.50 is a valuable right to the offender and compliance thereof intended to be mandatory. In State of Punjab v. Jasbir Singh State of Punjab v. Jasbir Singh, 1996 S.C.C. (Crl.) 1, the Supreme Court has held that protection given by Sec.50 is a valuable right to the offender and compliance thereof intended to be mandatory. But in State of Punjab v. Labh Singh State of Punjab v. Labh Singh, 1996 S.C.C. (Crl.) 1036, the Apex Court has held that each case should be considered in the light of the facts and circumstances in which the contraband was seized i.e., time when the search was conducted, the place where it was seized, whether police had prior information of the contraband being in transport of place of concealment, whether there was proper opportunity for the police to secure the presence of Gazetted Officer, whether the delay in search and seizure would result in the escape of the accused from arrest or contraband would be destroyed.‘ 23. Learned counsel for the appellant also cited decisions of this High Court and other High Courts for the proposition of law that non-compliance of Sec.50 of the Act would vitiate the entire trial. It it is needless to extract the above decisions, in view of the law declared by the Supreme Court in A.I.R. 1994 S.C 1872. 24. The decision of the Supreme Court how that non compliance of Sec.50 of the Act would vitiate the conviction. Sec.50 of the Act states that when any officer duly authorised under Sec.42 of the Act is about to search any person under the provision of Secs.41, 42, 43, he shall if such person, so requires, take such person without unnecessary delay to the nearest Gazetted Officer or to the nearest Magistrate. The prosecution cannot contend that since the empowered officer who conducted search himself is the Gazetted Officer the search conducted by such officer would satisfy the requirements of Sec.50. It is well settled that the fact that the search was conducted in the presence of empowered officer who is also a Gazetted Officer cannot be said to be substantial compliance of Sec.50 of the Act. It is well settled that the fact that the search was conducted in the presence of empowered officer who is also a Gazetted Officer cannot be said to be substantial compliance of Sec.50 of the Act. The Orissa High Court in Vijayakumar v. State of Orissa Vijayakumar v. State of Orissa, (1995) 2 Crimes 724 has held that asking the accused of his option to be searched in the presence of a Gazetted Officer who was member of the raiding party is not a compliance of mandatory provision of Sec.50 of the Act. The Madhya Pradesh High Court in Babulal v. Union of India Babulal v. Union of India, (1996)2 Crimes 264 has held that the words ‘take and brought’ used invariably indicate that the person apprehended by a raiding party has to be taken before a Magistrate or a Gazetted Officer. The High Court has also held that the legislature has taken special care to see that search of such accused should be taken before an independent person who happens to be a Magistrate or a Gazetted Officer. In view of the above decision it is not open to the prosecution to contend that the search conducted by the empowered officer who himself is a Gazetted Officer, is in compliance of Sec.50 of the Act. 25. From the decisions cited by both appellant and respondent, it is manifestly clear that Sec.50 of the Act has to be followed while searching a person. Now the question is whether search of person can be extended to search of any articles found in the house, Conveyance or other places. As already stated, in this case the gunny bags which contained contraband along with boat were taken to the seashore and that thereafter, the packets were searched in the customs office, As already stated, Sec.43 of the Act would apply to search and arrest of the accused in public place. As already stated, in this case the gunny bags which contained contraband along with boat were taken to the seashore and that thereafter, the packets were searched in the customs office, As already stated, Sec.43 of the Act would apply to search and arrest of the accused in public place. In Namdi Francis Nwazor v. Union of India and another Namdi Francis Nwazor v. Union of India and another, 1997 C.C.R. 27 (S.C) the Supreme Court has held thus: “However, when an article is lying else where and is not on the person of the accused and is brought to place where the accused is found, and on search, incriminating articles are found therefrom it cannot attract the requirements of Sec.50 of the Act for the simple reason that it was not found on the accused person. So, on the facts of this case it is difficult to hold that Sec.50 stood attracted and non-compliance with that provision was fatal to the prosecution case”. Bearing the principles of law laid down in the above decision in mind the submissions made by learned counsel for the appellant and the contention raised by the learned counsel for the State have to be analysed. 26. Now, coming to the question of compliance or non-compliance of Sec.42 of the NDPS Act, I am unable to subscribe to the contention of the appellant that the requirements of Sec.42 of the Act are not complied with. The prosecution has adduced satisfactory evidence to show that they received information and that the same was reduced into writing. It is not the case of the prosecution that P.W.1 and his party conducted sea patrol in the area around new port on suspicion. On the other hand, it is the specific case of the prosecution that only on specific information that Narcotic Drugs are to be smuggled out through coast, P.W.1 and his party conducted surveillance in the high seas. It is in the evidence of P.W.3 who is Inspector of Customs, that at about 9.30 p.m. on 17.7.1990 he received information and communicated the same to P.W.1 Ex.P-1 is the information sent by P.W.3 which has recorded by P.W.3. It is in the evidence of P.W.3 that on 18.7.1990 at about 3.30 p.m. he received another information from the same person who gave information under Ex.P-1. Ex.P-2 is the copy of the said information recorded on 18.7.1990. It is in the evidence of P.W.3 that on 18.7.1990 at about 3.30 p.m. he received another information from the same person who gave information under Ex.P-1. Ex.P-2 is the copy of the said information recorded on 18.7.1990. Apart from the above two information, P.W.1 also received another information from P.W.4. P.W.4 the Inspector of Customs Department received another information at about 5.45 p.m. on 18.7.1990 and that he recorded the same and sent the copy of the same to P.W.1, Ex.P-3 is the copy of the said information communicated by P. W.4. In all the above documents, it is specifically stated that Narcotic Drug is going to be smuggled out from Tuticorin Coast through Vallam belonging to one Peter. In Ex.P-3 it is specifically stated that the accused left into the sea with narcotic drug valued more than Rs.50 lakhs in the Vallam of one Peter. It is, thus, clear from the above documents that name of the person and the name of the owner of the boat, in which the contraband is said to be smuggled out are clearly stated. 27. It is contended on behalf of the appellant that the above documents are not genuine documents and that they were concocted by the complainant and that as Exs.P-1 to P-3 are only copies, much reliance cannot be placed upon them. It is no doubt true that originals of Exs.P-1 to P-3 were not produced. However, P.W.1 has given explanation for non-production of the originals. P.W.1 has stated that the originals were submitted for adjudication and that prior to that he took xerox copies of the same and kept it in the file and that the originals are misplaced. P.W.1 has given explanation for adducing secondary evidence. There can be no bar for the court to admit copies of the originals, if the originals are not found or not traceable. If really, P.W.1 intended to concoct the documents, he would have very well prepared originals of Exs.P-1 to P-3 and obtained signature of P.Ws.3 and 4 who are readily available in the Department. Therefore, the contention of the appellant that Exs.P-1 to P-3 are concocted for the purpose of the case has got to be rejected. 28. If really, P.W.1 intended to concoct the documents, he would have very well prepared originals of Exs.P-1 to P-3 and obtained signature of P.Ws.3 and 4 who are readily available in the Department. Therefore, the contention of the appellant that Exs.P-1 to P-3 are concocted for the purpose of the case has got to be rejected. 28. Nextly, it is contended by the appellant that copies of Exs.P-1 to P-3 were sent to Assistant Collector and other officials and that the prosecution would have taken steps to summon the copies sent to Assistant Collector. It is seen from the above documents that the copies is of the same were sent to Assistant Collector of Customs, Tuticorin and also Additional Collector of Madurai, It is also contended that the prosecution is able to produce the original reports sent under Sec.57 of the Act. Therefore, it is contended by the learned counsel for the appellants that the evidence of P.W.1 that original documents were not available cannot be accepted. The fact that some of the original documents are available and that other documents are misplaced will not positively show that the evidence of P.W.1 that original of Exs.P-1 to P-3 were lost is improbable. I see no reason to reject the reasons given by P. W. 1 or non-production of originals of Exs.P-1 to P-3. Therefore, that the contention of the learned counsel for the appellant on this aspect is bereft of any substance. 29. It is contended by the learned counsel for the appellant that the case of the prosecution that on receipt of specific information they conducted surveillance in high sea suffered from certain grave infirmities. It is the case of the prosecution that they sighted the suspected boat in the sea and that in spite of torch light signals shown, the boat speed fast continuously and that therefore, the officers, opened nine rounds of fire in the air and that they chased the Vallam and caught hold of the same. In cross-examination, P.W.1 has admitted that they took the boat to their department and that there are documents to show the particulars of movement of the above boat and the quantum of petrol utilised for the above boat and that there are also documents to show the particulars regarding carrying revolvers and opening of fire. In cross-examination, P.W.1 has admitted that they took the boat to their department and that there are documents to show the particulars of movement of the above boat and the quantum of petrol utilised for the above boat and that there are also documents to show the particulars regarding carrying revolvers and opening of fire. Relying upon the above evidence, it is contended on behalf of the appellant that if the above documents are produced before the court, it could have been ascertained whether P.W.1 and his party had in fact conducted survillance in the sea. The mere fact that the prosecution failed to produce the documents relating to movements of the boat, keeping the revolvers and opening of fire will not render the evidence of P.W.1 unbelievable. The evidence of P.W.1 on this aspect is amply supported by the evidence of P.W.3 who also accompanied P.W.1 in conducting surveillance in the high seas. In the above circumstances, the version put forward by the defence that P.W.1 and his party would not have conducted any surveillance in the sea, on the basis of Exs.P-1 to P-3, has no force whatsoever. 30. It is also contended on behalf of the appellant that the above copies Exs.P-1 to P-3 were produced only on the date of examination of witnesses. P.W.1 was examined on 3.11.1995. In the court seal affixed on the back of Ex.P-1, it is stated that the document was filed on 3.11.1995 and that it is marked as Ex.P-1, But, there is also another court seal which would show that document was received on 4th August. But the year is not clear, It is, however, clear that the above document would have been produced before the court in the month of August, i.e., prior to 3.11.1995. Therefore, the defence cannot make out a case on the above facts which would not affect the case of the prosecution. For the reasons stated above, I hold that P.W.1 received specific information with regard to commission of the offence and that Exs.P-1 to P-3 are informations reduced into writing and as such, it has to be held that Sec.42(1) and (2) and the proviso were duly complied with. 31. For the reasons stated above, I hold that P.W.1 received specific information with regard to commission of the offence and that Exs.P-1 to P-3 are informations reduced into writing and as such, it has to be held that Sec.42(1) and (2) and the proviso were duly complied with. 31. The Supreme Court has held that under proviso to Sec.42(1), if the empowered officer has to carry out search between sun set and sunrise, he must record the grounds of his belief and that to that extent, the provisions, are mandatory. It is also held by the Supreme Court that copy of such records should be sent to immediate official/superior. P.Ws.3 and 4 have sent the above information to P. W. 1 who is their superior officer. The principle laid down in State of Punjab v. Balbir Singh State of Punjab v. Balbir Singh, A.I.R. 1994 S.C. 1872 will show that Sec.42(2f) is mandatory. In this case, the boat along with contraband are said to have been seized between sunset and sunrise. Even before seizing the above boat, P.W.1 received specific information through P.Ws.3 and 4 under Exs.P-1 to P-3 and as such, there can be no difficulty in holding that the mandatory provisions of Sec.42 of the Act are complied with in this case. 32. It is contended by the learned Special Public Prosecutor that compliance of Sec.42 does not arise in this case, in view of Secs.43 and 49 of the Act. Sec.43 of the Act empowers such officer as mentioned in Sec.42 to seize in a public place or in transit any Narcotic Drug in respect of which he has reason to believe that offence punishable under chapter IV has been committed. The Apex Court in the above decision has held that the empowered officer while acting under Sec.43 of the Act need not record any reason of his belief and that the Section does not mention anything about the empowered officer having prior information given by any person or about recording the same as compared to Sec.42 of the Act. It is the case of the prosecution that they seized the vehicle in sea. It is not in dispute that the above vehicle is a country boat called ‘Vallam’, and the above boat is likely to be used for transport of goods and persons from one shore to another shore. It is the case of the prosecution that they seized the vehicle in sea. It is not in dispute that the above vehicle is a country boat called ‘Vallam’, and the above boat is likely to be used for transport of goods and persons from one shore to another shore. Therefore, if any article containing contraband is seized in a vehicle in transit, in public place, it is not incumbent upon the empowered officer to record the information received by him and send copy of the same to superior officer. 33. It is also contended by the learned counsel for the respondent State that Sec.49 of the Act would apply to this case, Sec.49 of the Act empowers the officer authorised under Sec.42 of the Act to stop any animal, conveyance or air-craft and compel it to land and search the conveyance and examine and search any goods in the conveyance, 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 psychotropic substance, in respect of which he suspects that any provision of this Act has been contravened. The above section does not require that the information should be taken down in writing and forward it to the immediate superior. There is nothing to show in the above provision that the grounds of suspicion should be reduced into writing. The only requirement that is necessary to invoke the aid of the above provision is that the officer should have reason to suspect the use of the conveyance for transport of any Narcotic Drug. But, the above provision cannot be invoked by the learned Special Public Prosecutor for two reasons. Firstly, it is not the case of the prosecution that the prosecution while conducting routine surveillance intercepted the boat on suspicion and made the boat to land in the seashore. Secondly, it is the specific case of the prosecution that only on specific information which contained the name of the accused and owner of the boat, they went into the sea to seize the boat. Even before P.W.1 and his party went into the sea, they received specific information about the commission of the offence and the particulars of the offenders who are involved in smuggling the contraband. Even before P.W.1 and his party went into the sea, they received specific information about the commission of the offence and the particulars of the offenders who are involved in smuggling the contraband. Sec.49 of the Act cannot be pressed into service at this stage, especially when the prosecution rests their case under Sec.42 of the Act. Further, it is also established in this case that the complainant received specific information and copy of the same was also sent to superior officer. But, it is seen from Sec.43 of the Act that the above section will apply to the goods seized in public place or in transit. Explanation to the above section states that the expression ‘public place’ includes ‘public conveyance’ also. The country boat which is normally used for taking goods from one place to another and from shore to ship shall be deemed to be a public conveyance. If goods are seized and searched in public conveyance, Sec.43 of the Act will apply to such cases. But, it is stated that the above boat and contraband were brought to old port, Tuticorin. P.W.1 has stated that they conducted search at the place called old port. The area where the old port is situate is a public place. It cannot be denied that old port area is accessable to public, though certain restrictions could be imposed regarding ingress and egress into such port. However, it cannot be disputed that the place where the search was conducted is a public place. Therefore, Sec.43 of the Act will squarely apply to this case and as such, the contention of the learned counsel for the respondent that for conducting search in a public place under Sec.43 of the Act recording information into writing and sending copy of the same to superior officer do not arise has got to be accepted. However, it is proved in this case that the information received by the complainant was reduced into writing and a copy of the same was sent to superior officer. Even assuming that the information was not reduced into writing and proviso to Sub-clause (2) of Sec.42 of the Act was not complied with, it would not affect the case of the prosecution, since the provisions of Sec.43 of the Act would apply to this case. Even assuming that the information was not reduced into writing and proviso to Sub-clause (2) of Sec.42 of the Act was not complied with, it would not affect the case of the prosecution, since the provisions of Sec.43 of the Act would apply to this case. Thus, looked at from any angle, the appellant cannot succeed on the plea that mandatory requirements of Sec.42 of the Act were not complied with. 34. Regarding compliance of Sec.57 of the Act, it has to be held that the above provision has been duly complied with. In, A.I.R. 1994 S.C. 1872 reported above, the Apex Court has held that provisions of Secs.52 and 57 of the Act are by themselves not mandatory and that if there is non compliance or if there are lapses like delay, then, the same has to be examined to see whether any prejudice has been caused to the accused. In this Case, P.W.1 has sent a detailed report under Sec.57 of the Act. Ex.P-13 is the above report submitted under Sec.57 of the Act dated 20.7.1990. The report was sent after arrest of the accused. The above report is submitted to Assistant Collector, who is superior to P.W.1. Therefore, it has to be held that Sec. 57 of the Act has been complied with in this case. 35. Learned counsel for the appellant elaborately argued and cited number of decisions on the question of compliance of mandatory provisions of Sec.50 of the Act. The provisions of Sec.50 of the Act are declared to be mandatory by the Apex Court in the, A.I.R. 1994 S.C. 1872 reported above and the same was also followed by the Apex Court in subsequent cases. P.W.1 has not stated in his evidence that he informed the accused about the valuable right conferred under Sec.50 of the Act. P.W.1 has not stated that he informed the accused as to whether he requires to be examined by a Gazetted Officer or Magistrate. It is not shown that P.W.1 or other officer enquired the accused on the above aspect and it is also not mentioned in Ex.P-4 the mahazar or in the complaint that before searching the gunny bag, the accused was informed of his right under Sec.50 of the Act. It is not shown that P.W.1 or other officer enquired the accused on the above aspect and it is also not mentioned in Ex.P-4 the mahazar or in the complaint that before searching the gunny bag, the accused was informed of his right under Sec.50 of the Act. Sec.50 of the Act reads thus: “When any officer duly authorised under Sec.42 is about to search any person under the provisions of Secs.41, 42 or 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. It is no doubt true that P.W.1 is the empowered officer and superintendent and he is also a Gazetted Officer. As already stated it cannot be contended that mere presence of Gazetted Officer, who is one among the raiding party validate the search. Bearing the principles of law laid down in the decision referred to supra, the question whether non-compliance of Sec.50 of the Act would vitiate the trial and conviction, has to be examined. From a plain reading of Sec.50, it is clear that even if the duly authorised officer under Sec.42 of the Act is about to search any person under Sec.43 of the Act, he shall take such person without unnecessary delay to the nearest Gazetted Officer or to the nearest Magistrate, Therefore, it is manifestly clear that the officer, who intend to search a person in a public place has to follow the mandatory requirements of Sec.50 of the Act. Ofcourse there are certain exceptions to the above provisions and one of the such exceptional case is reported in Namdi Francis Nwazor v. Union of India Namdi Francis Nwazor v. Union of India, 1997 C.C.R. 27. The decisions referred to above will clearly show that if a person carries any bag which contain contraband or if any article or suit case is lying in the place where the accused is found in a room, the accused shall be deemed to be in possession of such article or suitcase and even in such cases, Sec.50 of the Act has to be applied. It cannot be disputed that if a person carries a bag along with him or any article or suitcase is found in the room or premises where the accused was found, it has to be held that he is in possession of the same and the terms search of person will take in such article or suit case also. In this case, the accused and the gunny bag were found in the country boat and that the accused and the gunny bags were brought to the sea shore by P.W.1 and his party. It is the admitted case of the prosecution that the accused was found in the boat where the gunny bags were kept. It is not the case of the prosecution that gunny bags were brought from some other place to the place where the accused is found and that thereafter, the search was conducted. In this case, it is admitted that the accused and articles were found in the boat which were in the possession of the accused at the time of the seizure. Therefore, the decision reported in Namdi Francis Nwazor v. Union of India and another will not apply to the facts of this case”. 36. It is contended by the learned Special Public Prosecutor that Sec.49 of the Act will apply to this case and as such, the requirement of Sec.50 of the Act will not apply to such cases. As already stated, it is not the case of the prosecution that in routine surveillance in the sea they seized the boat. On the other hand, they have come forward with a specific case that on specific information only they seized the boat along with the accused. If the officer conducted search in the high sea then it cannot be contended that Sec.50 of the Act has to be complied with. In such situations, it would not be possible to inform the accused about his right, especially when another person travelling in the boat jumped into the sea it is also proved from the evidence of P.W.1 that only after opening of fire, they stopped the boat. It is no doubt true that in such peculiar circumstances, it would not be possible for the officers to inform the accused in the high seas about the right conferred under Sec.50 of the Act. It is no doubt true that in such peculiar circumstances, it would not be possible for the officers to inform the accused in the high seas about the right conferred under Sec.50 of the Act. The above contention of the learned counsel for the respondent is also supported by a decision of the Supreme Court. In State of Punjab v. Labh Singh State of Punjab v. Labh Singh, 1996 S.C.C. (Crl.) 1036 which is already referred to above, the Supreme Court has held that each case should be considered in the light of the facts and circumstances in which the contraband was seized, But, in State of Punjab v. Jasbir Singh State of Punjab v. Jasbir Singh, 1996 S.C.C. (Crl.) 1 the Supreme Court has held that in cases Police Officers had prior knowledge that illegal transport of the contraband is in movement and persons are in unlawful possession and intends to interest it, conduct search and consequently to seize the contraband they are required to inform the offender that he has the right that the search will be conducted in the presence of a Gazetted Officer or a Magistrate. It is however held that evidence collected during investigation in violation of the statutory provision does not become inadmissible. In the Labh Singh caie, . the Supreme Court has held that the circumstances as to time when the search was conducted, the place where it was seized, whether police had prior information, whether there was proper opportunity for the police to secure the presence of a Gazetted Officer, whether delay in search and seizure would result in escape of the accused from arrest or contraband would be destroyed and whisked away should be considered. 37. The evidence adduced in this case will show that after seizing the boat, the accused and boat were brought to the sea shore and that thereafter, one of the officers of the raiding party went to a nearby village and brought two witnesses to attest the mahazar. It is no doubt true that P.W.1 had stopped the boat by opening of fire and at that time, one of the person who was in the boat namely Peter jumped into the sea. But, the search was conducted in port area, that too in the presence of two witnesses. It is no doubt true that P.W.1 had stopped the boat by opening of fire and at that time, one of the person who was in the boat namely Peter jumped into the sea. But, the search was conducted in port area, that too in the presence of two witnesses. It is also in the evidence of P.W.1 that they reached the seashore at about 4.15 a.m. In cross-examination he has also admitted that the writing of mahazar was completed at about 8.00 a.m. on 19.7.1990. It is thus clear that from 4.15 a.m. till 8.00 a.m., the accused and the contraband were found in the place where the mahazar was prepared. When the prosecution was able to bring two witnesses to witness the recovery and taking of samples, nothing prevented P.W.1 to inform the accused about his right to be searched either in the presence of Gazetted Officer or a Magistrate. The search is said to be conducted in the Tuticorin port area and customs office is also situate near the port. In the above circumstances, it has to be held that P.W.1 had ample time to inform the accused about his right under Sec.50 of the Act. 38. It is admitted by P.W.1 that his party including constables consisted of 8 persons at the time of raid and it is admitted that they were having guns and rifles. The accused is the only person brought to seashore. Hence, it cannot be said that the accused would escape and the contraband would be destroyed, if time is taken to inform the accused about his right to be searched in the presence of Gazetted Officer or Magistrate. If the accused expresses his desire to be examined in the presence of Gazetted Officer or Magistrate, he would have been taken to a nearby Tuticorin town to the house of Gazetted Officer or Magistrate, who could have been required to attend the search. It is not un-common that the Magistrates would be attending the hospitals even in the midnight to record the dying declaration of the injured persons. Therefore, it cannot be contended that it would be impossible to inform the accused about his right and take him to the nearest Magistrate or Gazetted Officer. It is not un-common that the Magistrates would be attending the hospitals even in the midnight to record the dying declaration of the injured persons. Therefore, it cannot be contended that it would be impossible to inform the accused about his right and take him to the nearest Magistrate or Gazetted Officer. Therefore, the contention raised by the State that the boat was seized in the midnight and that the search was conducted in the early morning and that it would not be possible to comply with Sec.50 of the Act cannot be accepted. As already stated, the accused and contraband were brought to shore and that from 4.15 a.m. till 8.00 a.m., the accused was in the custody of P.W.1. Hence cannot be said that the contraband is likely to be destroyed or the accused would abscond, if the process contemplated under Sec.50 of the Act was resorted to. It is also clear from the evidence that P.W.1 had ample time to inform the accused about his right under Sec.50 of the Act. Absolutely, P.W.1 has not whispered anything in his evidence about the compliance of Sec.50 of the Act. Therefore, 1 have no hesitation in holding that the prosecution has failed to follow the mandatory requirements of Sec.50 of the Act. The object for which the above provisions of Sec.50 is incorporated in the Act has been pointed out by the Apex Court in the, A.I.R. 1994 S.C. 1872, thus: “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 safeguard are provided which in the context have to be observed strictly”. It is contended on behalf of the appellant that P.W.5 the search witness turned hostile and that the prosecution failed to prove that P.W.1 had in fact conducted search and recovered the contraband. It is contended on behalf of the respondent that though P.W.5 turned hostile, it would not affect the case of the prosecution. It is further contended that the evidence collected in breach of mandatory requirements does not become inadmissible. In the Balbir Singh's case referred to. It is contended on behalf of the respondent that though P.W.5 turned hostile, it would not affect the case of the prosecution. It is further contended that the evidence collected in breach of mandatory requirements does not become inadmissible. In the Balbir Singh's case referred to. The Apex Court has held that if the empowered officer carries out search, he would be doing so under the provisions of Crl.P.C, namely, Secs.100 and 165, Crl.P.C. and if there is no strict compliance with the provisions of Criminal Procedure Code, then such search would not per se become illegal and would not vitiate the trial. The Supreme Court in Ali Mustaffa v. State of Kerala Ali Mustaffa v. State of Kerala, 1995 S.C.C. (Crl.) 32 has held that unlawful possession of the contraband under the provisions of NDPS Act has to be established by the prosecution beyond reasonable doubt. It is further held that the evidence collected as a result of illegal search could be used as evidence in proceeding under the Income-tax Act, cannot be applied to recovery of contraband seized under the provisions of NDPS Act. 39. In Radhakishen v. State of Uttar Pradesh Radhakishen v. State of Uttar Pradesh, A.I.R. 1963 S.C. 822 the Apex Court has held that it may also be that because of illegality of the search, the court may be inclined to examine carefully the evidence regarding the seizure and that beyond these two consequences no further consequences ensues and the seizure of the articles is not vitiated. The above case will not apply to the facts of this case. I am not inclined to accept the case of the prosecution that the evidence collected during the search and the seizure of the contraband in the presence of accused under the mahazar has to be accepted, even though the search was conducted in contravention of Sec.50 of the Act (Vide Ali mustafa case). As already stated, Sec.50 of the Act is declared to be mandatory and non-compliance of the above provision would vitiate the trial and conviction. The trial court did not advert to the above aspect of the case. I hold that the search and recovery of the contraband in contravention of Sec.50 of the Act would vitiate the case of the prosecution, and hence the accused is entitled to acquittal on this ground alone. 40. [omitted - Ed.] 41. The trial court did not advert to the above aspect of the case. I hold that the search and recovery of the contraband in contravention of Sec.50 of the Act would vitiate the case of the prosecution, and hence the accused is entitled to acquittal on this ground alone. 40. [omitted - Ed.] 41. The prosecution also relies upon the confession statement given by the accused to prove the charges levelled against him. It is contended on behalf of the appellant that the confession was not given voluntarily by the accused and that after prolonged custody in the Customs Office, the above statement was obtained by coercion and as such, no reliance can be placed upon it. It is well settled that the confession given before the customs officer is admissible in evidence and that it cannot be equated with the confession given to a police officer. Sec.25 of the Indian Evidence Act will not apply to the statement recorded by the customs officer and empowered officer under the NDPS Act. Under Sec.67 of the NDPS Act, any officer referred to in Sec.42 of the Act during the course of the enquiry is empowered to call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of the Act and examine any person acquainted with the facts of the case. The statement recorded under Sec.67 of the Act is admissible in evidence if it is made voluntarily and without any fear, inducement or coercion. In this case, it is admitted that the officers of the Customs seized the boat at about 1.00 a.m. The remand report Ex.P-29 was sent to court along with the accused on 21.7.1990. It is stated in the above report that the accused was arrested on 20.7.1990 at about 4.00 p.m. P.W.1 has stated in his evidence that the accused was detained in the customs office from 19.7.1990 and that only on 20.7.1990 at about 10.00 a.m. the accused was examined and the examination was completed at 1.00 p.m. But, he was not produced before the Magistrate on the same day. It is seen that the accused and remand report were sent to court only on 21.7.1990. It is thus, clear that the accused was in the custody of the Customs Officer from 19.7.1990 till 21.7.1990. It is seen that the accused and remand report were sent to court only on 21.7.1990. It is thus, clear that the accused was in the custody of the Customs Officer from 19.7.1990 till 21.7.1990. As the accused was subjected to prolonged custody, it cannot be said that the statement given by the accused is voluntary. In the above circumstances, no weight can be attached to the above confession statement alleged to have been given by the accused to fasten liability on the accused. 42. Learned counsel for the appellant also pointed out certain discrepancies regarding the weight of the contraband. It is contended that there was delay in sending the contraband to the court and that the provisions of Secs.52 and 55 of the Act were not complied with. P.W.1 has stated that the packets which contained contraband were detected during the search. The above packets are marked as Exs.P-1 to P.32. The cloth pouches were marked as 33A and 33B and the quantity of the brown sugar was 33 kilograms. He has stated that he took two samples from each packet weighing 5 gms. and he affixed seal on the packets. According to P.W.1 the total sample are 68 in number. It is seen from Ex.P-15 that 34 sample packets were deposited with Officer incharge of seized goods, Tuticorin by P.W.1 On 20.7.1990. It is stated in the above document that the officer received 34 sample packets sealed with the personal seal of P.W.1 It is the version of P.W.1 that the remaining 33 samples were sent to Godown keeper, Kandaswamy on 20.7.1990. Ex.P-16 will show that the remaining packets numbering 33 were sent to Kandaswamy on 20.7.1990. In the above documents Exs.P-15 and P-16 it is stated that the packets contained the seal of P.W.1. Sec.52(3) of the Act states that every person arrested and the article seized shall be forwarded without unnecessary delay to the officer incharge of nearest police station or the officers empowered under Sec.53 of the Act. It is the case of the prosecution that they sent the contraband to the officer of the Customs Department, Thus, per se, the above documents will show that Sec.52 of the Act are complied with. It would be relevant to state at this stage that as per the decision rendered in, A.I.R. 1994 S.C. 1872.Sec.52 of the Act by itself is not mandatory. It would be relevant to state at this stage that as per the decision rendered in, A.I.R. 1994 S.C. 1872.Sec.52 of the Act by itself is not mandatory. Therefore, in any event I do not accept the case of the accused that Sec.52 of the Act was not complied with. 43. Regarding the quantum of contraband seized and the quantum of sample taken, it is contended by the appellant that there is discrepancy. In the mahazar Ex.P-4, it is stated that the weight of the contraband is 33 kgs. and that 64+4 samples were taken at the time of the search. In Ex.P-15 the forwarding memo, sent by P.W.1 to the officer incharge of seized goods, it is show that drugwise number of packets are 34 and total number of packets are 34, It is seen that the number of sample packet were only 34, as per forwarding memo. But, in Ex.P-16 dated 20.7.1990 the total number of packets is shown as 33. But in column 4, it is stated that apart from 32 packets of brown sugar another packet consisted of two half kilo packets in one kilo packet was there. Thus, 32 plus two packets which consisted of two half kilo each will come to 34. Further, it is noted in Ex.P-18 in column 6, as 34 packets. The total sample packets drawn were 68 and 34 sample packets were sent to chemical examiner. The report of the chemical examiner Ex.P-20 will also show that he received 34 sealed packets for the purpose of test. But, it is pointed out by the learned counsel for the appellant that though P.W.1 has stated that he took 5 gms. of sample, in Ex.P-20, the weight of samples are shown as less than 5 gms. and above gms. The weight of the sample shown in Ex.P-4 mahazar is only approximate. But, when it is actually weighed by scientific methods at the office of the chemical examiner, the actual weight is noted by them. The slight difference regarding the quantity of sample shown in Exs.P-4 and Ex.P-20, would not materially affect the case of the prosecution. 44. After receipt of Ex.P-20, P.W.1 claims to have filed a complaint against the accused. But, after filing the compliant, P.W.1 sent the sample again and submitted another report Ex.P-21 on 7.5.1991. The slight difference regarding the quantity of sample shown in Exs.P-4 and Ex.P-20, would not materially affect the case of the prosecution. 44. After receipt of Ex.P-20, P.W.1 claims to have filed a complaint against the accused. But, after filing the compliant, P.W.1 sent the sample again and submitted another report Ex.P-21 on 7.5.1991. As the percentage of Heroin i.e., Diacetyl morphine is not noted in Ex.P-20, P.W.1 seems to have sent another requisition to the chemical examiner to note the percentage in the sample. The above test was conducted only after filing of the complaint and as such, the above report is not entitled to any probative value. It is further admitted by P.W.1 that remaining samples of 30 noted as 52 were sent to chemical examiner and he received report under Ex.P-22 It is seen that even before that an application under Sec.52-A of the Act was filed into court on 5.12.1991 and in the presence of the court, 34 samples were taken. Exs.P-23 and P-24 are the proceedings regarding the above sample taken in court. For the purpose of destroying the remaining contraband, the same was sent to the Assistant Collector and certificate under Ex.P-26 was received for destruction of the contraband. It is clear from the evidence, that no notice was given to the accused when sample was taken in the court. The chemical report received subsequent to Ex.P-20 cannot be relied upon by the prosecution, since those reports were received after filing the complaint by P.W. 1 The prosecution has to only rely upon Ex.P-20 on the basis of which complaint was filed into court. Therefore, the evidence of P.W. 1 regarding sending the sample and taking the samples in court after filing the complaint is not entitled to any weight. 45. It is no doubt true that in Ex.P-20, the percentage of Diacetyl morphine is not noted. But it is stated in Ex.P-20 that the sample is in the form of brownsugar and that it answers test for the presence of Di-acetyl morphine. The heroin comes under opium derivative Sec.2(xvi)(d) of the Act. Will show that percentage of Diacetyl morphine is not essential to ascertain whether a particular drug is heroin or not. Therefore, the absence of percentage of Diacetyl morphine in Ex.P-20 will not affect the case of the prosecution. 46. The heroin comes under opium derivative Sec.2(xvi)(d) of the Act. Will show that percentage of Diacetyl morphine is not essential to ascertain whether a particular drug is heroin or not. Therefore, the absence of percentage of Diacetyl morphine in Ex.P-20 will not affect the case of the prosecution. 46. It is further contended by the appellant that the contraband and sample packs were sent to court only on 5.12.1991, though it was seized on 19.7.1990 and that it is not shown where the above articles were kept. In support of the same, he relied upon a decision reported in Valsala v. State of Kerala Valsala v. State of Kerala, 1993 S.C.C. (Crl.) 1082. In the above decision, it is held that the evidence adduced is wholly insufficient to conclude that what was seized from the appellant alone was sent to the chemical examiner. It is no doubt true that there is delay in producing the property into court. But, it is seen from the evidence of P.W.1 that he kept the contraband with the godown keeper with his private seal. Ex.P-15 will show that the samples packets were seen to officer incharge of Godown on 20.7.90 and Ex.P-16 will show that another set of packets were sent to the same godown on 20.7.1990. Ex.P-18 will show that the test memo was prepared on 19.7.1990. P.W.1 after receiving the sample produced the same before the court. Though, there is delay in producing the article before the court, it would not affect the case of the prosecution, since even before production of the contraband, the samples were sent to chemical examiner without any delay. Ex.P-20 will show that the chemical examiner received the sample bottle on 23.7.1990. In the above circumstances, from mere delay in producing the article before the court it cannot be readily inferred that the contraband was tampered with before producing into the court. 47. It is pointed out by the learned counsel for the appellant that another co-accused Raghavan did not appear in this case and that Peter who was said to be in the boat on the date of the seizure is not apprehended and that no case is filed against him. P.W.1 has stated that the said Raghavan absconded while he was being brought to Madras. The case against the said Raghavan is split up and is pending. P.W.1 has stated that the said Raghavan absconded while he was being brought to Madras. The case against the said Raghavan is split up and is pending. It is needless to give any finding on the question as to why the complaint is not filed against Peter, it is the case of the prosecution that Peter jumped into the sea and that his where abouts were not known. Therefore, the contention of the appellant on the above aspect need no further probe. 48. Though the prosecution has established that they seized the boat and arrested the accused, they failed to observe the mandatory requirements of Sec.50 of the Act. As already stated, as the provision of Sec.50 of the Act are not complied with, the case of the prosecution that the accused was found in unlawful possession of the contraband cannot be held to be proved. For the reasons stated above, I hold that the prosecution has failed to establish that the accused was in unlawful possession of the contraband and as such, the charges levelled against the accused are not proved beyond reasonable doubt. 49. In the result, the criminal appeal is allowed. The conviction and sentence imposed on the appellant/ accused are set aside. The accused is ordered to be released forthwith, unless his presence is required in any other case. The fine amount paid, if any shall be refunded to him. S.S.-----Appeal allowed.