JUDGMENT - J.N. PATEL, J.:---These two appeals arise out of the judgment and order dated 13-1-1998 passed by the Learned Special Judge (N.D.P.S.) Nagpur in Special Case No. 64 of 1996 wherein the appellants have been found guilty for having committed offences under section 21 of the Narcotic Drugs Psychotropic Substances Act, 1985 (hereinafter referred to as N.D.P.S. Act) and sentenced to suffer R.I. for 10 years and to pay fine of Rs. 1,00,000/- in default to suffer R.I. for one year. The appellant Pradip Raghunathsingh Thakur, original accused No. 1 was also convicted for having committed offence punishable under section 25 of the N.D.P.S. Act and sentenced to suffer R.I. for 10 years and to pay fine of Rs. 1,00,000/- in default to suffer R.I. for one year. The Court ordered that the substantive sentences passed against the appellant accused No. 1 to run concurrently and also allowed set of for the period they were in detention i.e. in case of appellant original accused No. 2 from 4-9-96 to 2-12-96. As the appellants were tried together in one trial the two appeals can be disposed of by one judgment. 2. In nutshell the prosecution's case is that on 3-9-96 P.H.C. Hemant Pali who was attached to Crime Branch, Narcotic Cell, Nagpur, after making an entry at 10.30. hours left for patrolling duty alongwith P.S.I. Shri B.T. Tidke, P.H.Cs. B. No. 2652 and 2912 P.C. B. No. 3147, W.P.C. B. Nos. 4254 and 5022 in Police jeep for the purposes of gathering information in respect of the people dealing in Narcotic Drugs and to conduct raid. 3. While they were patrolling within the limits of Police Station Tahsil and Lakadganj at about 12.35 hours at Marwari Square they got information through their informer that a person by name Pradip Thakur aged about 27-28 years having black sallow complexion, residing in front of (near) Shahad Hospital, near Itwari Railway Station is in possession of Gard (Brown Sugar) at his house. On receiving this information P.H.C. Pali informed Police Onspector Shri. M.M. Shirbhate on telephone who instructed him to make preparation for raid by calling panchas and also instructed that he would be coming and will meet them at Marwari square. On receiving this information P.H.C. Pali informed Police Onspector Shri. M.M. Shirbhate on telephone who instructed him to make preparation for raid by calling panchas and also instructed that he would be coming and will meet them at Marwari square. After receiving instructions from P.I. Shirbhate, P.H.C. Pali prepared the occurrence report at 12.45 hours and thereafter called two passers by at Marwari square namely Sunil son of Sudhakar Lakhe and Rajesh son of Govindrao Mogre. He apprised them of the purpose and asked them to act as panchas; the two persons agreed to act as panch. In the meanwhile at about 13.30 hours, P.S.I. Shirbhate arrived on his scooter; he was handed over the occurrence report; on this P.I. Shirbhate made endorsement and from there, they left in jeep and went to north gate on Shantinagar road, near Itwari Railway Station and parked the jeep there. They all got down and proceeded on foot towards the address by Shanti Nagar Road. When they reached Shahad Hospital there they got information about the house of Pradip Thakur at 13.50 hours; they were in front of one southern facing house and surrounded the house and H.C. Pali gave a call to Pradip. They got response, one person came out of the house. Police Party gave their identity and asked about his name, they told him that they has intention to conduct search of his house; they saw one person was sitting in the house; on getting information about the said person; H.C. Pali informed that they want to conduct raid and search of those persons as well as the house and informed them that if they so desire the raid can be conducted in presence of the Gazetted Officer of Magistrate and in addition to this the two persons were given a notice in writing under section 50(1) of the N.D.P.S. Act. As they declined the presence of Gazetted Officer or Magistrate a personal search was conducted of the person by name Pradip Raghunath Singh Thakur in which they found four packets of Gard (Brown Sugar) weighing 420 milligrams valued at Rs. 420/- any cash amount of Rs. 215/-. Police also recovered one pipe from his possession. On search of the person by name Javed Hussain, police found a place of glittering cigarette paper in partly burnt condition to which brown sugar was sticking, one pipe and cash amount of Rs. 420/- any cash amount of Rs. 215/-. Police also recovered one pipe from his possession. On search of the person by name Javed Hussain, police found a place of glittering cigarette paper in partly burnt condition to which brown sugar was sticking, one pipe and cash amount of Rs. 140/-. In the premises the police material used for consuming Gard i.e. a candle valued at Re. 1/- from scissor valued at Rs. 5/- ; match box valued at Rs. 00.50 paper of cigarette packet and a piece of paper used for Gard packets. All this came to be seized and sealed in the presence of the panchas and came to be recorded in the seizure and spot panchanama by the police. The said two persons i.e. Pradip Thakur and Javed Hussain were informed that as they have committed offences punishable under sections 21,25 and 29 of the N.D.P.S. Act they are taken in custody. Thereafter, police party alongwith the two persons arrested by them came to Lakadganj Police Station where Police Head Constable Hemant Pali lodged First Information Report on which P.S.I. Tighare the Duty Officer registered crime No. 247/96 against the two persons for having committed offence under sections 21, 25 and 29 of the N.D.P.S. Act and took them in custody. Alongwith the report H.C. Pali also handed over six sealed parcels, personal search and house search panchanama and C.A. Form and cash of Rs. 355/ to P.S.I. Tighare, who in turn handed over the property to H.C. Satpute who in turn made entry of the articles in the muddemal Register. After completing successful raid P.H.C. Pali made a report as required under section 57 of the N.D.P.S. Act. H.C. Satpute on the next day handed over the same to P.C. Deepak alongwith invoice challan and two parcels in duly sealed condition for delivering the same to the Regional Forensic Science Laboratory Dhantoli, Nagpur. P.C. Deepak handed over the sealed packets to the office of Regional Forensic Science Laboratory, Dhantoli, Nagpur who received two sealed parcels with seals intact on 4-9-96. On receipt of the C.A. Report dated 31-10-96 in which the results of analysis were positive in respect of the samples i.e. it was found containing heroin. The police filed charge sheet against the appellants accused in the Court of Special Judge, N.D.P.S., Nagpur. 4. On receipt of the C.A. Report dated 31-10-96 in which the results of analysis were positive in respect of the samples i.e. it was found containing heroin. The police filed charge sheet against the appellants accused in the Court of Special Judge, N.D.P.S., Nagpur. 4. The learned Special Judge on 7-7-97 framed a charge against the appellant accused vide Exhibit 27 for having committed offences under section 21, and section 21 read with section 29 of the N.D.P.S. Act and further against the appellant accused No. 1 for having committed offence under section 25 of the N.D.P.S. Act. The appellants accused pleaded not guilty and claimed to be tried. The prosecution examined in all 6 witnesses which includes; Laxman Tighare P.W. 1 the officer on duty who registered F.I.R; H.C. Ghansham Satpute P.W. 2 Malkhana In-charge;P.C. Deepak Shukla P.W. 3 who carried the sample to the officer of C.A.: Sunil Lakhe one of the panchas P.W. 4 who witnessed the search and seizure carried out by the investigating agency ; H.C. Hemant Pali P.W. 5 who conducted raid, search and seizure and P.I. Madhukar Shirbhate P.W. 6. The defence of the accused persons was that of denial. They did not examine themselves or any witness in support of their case. The learned Special Judge found that the appellant accused No. 1 was found in possession of 420 mg. of brown sugar and appellant accused No. 2 was found in possession of brown sugar. Whereas the appellant No. 1 has allowed appellant accused No. 2 to use his residential house to smoke brown sugar and therefore the prosecution has proved that both the accused have conspired together and have been found in possession of brown sugar and proceeded to convict the accused Nos. 1 and 2 for having committed offence under section 21 of the N.D.P.S. Act and accused No. 1 under section 21 read with section 25 of the N.D.P.S. Act. 5. Mr. Daga, learned Counsel appearing for appellant Pradip son of Raghunathsingh Thakur (original accused No. 1) submitted that the prosecution case suffers from non compliance of the mandatory provisions of sections 42 and 50 of the N.D.P.S. Act. 5. Mr. Daga, learned Counsel appearing for appellant Pradip son of Raghunathsingh Thakur (original accused No. 1) submitted that the prosecution case suffers from non compliance of the mandatory provisions of sections 42 and 50 of the N.D.P.S. Act. It is submitted that instead of recording the information received P.H.C. Pali had telephoned his superior official which is not the requirement under section 42(1), though subsequently he is supposed to have prepared an occurrence report and handed over to P.I. Shirbhate and therefore, the whole procedure undertaken by the raiding party would be vitiated. Mr. Daga further submitted that in this case before the search of the appellant accused could made he was not given the necessary caution as required under section 50(1) of the N.D.P.S. Act. Mr. Daga pointed out to this Court that before such search could have been conducted, it was necessary for the Police Officer who is duly authorized under section 42 and is about to search any person to be forewarned that person that if such person so requires he can be taken to the nearest Gazetted Officer of any of the department or the Magistrate. Mr. Daga submits that now it is well settled law that unless the concerned person is given the necessary caution as contemplated under section 50(1) any seizure made without following the procedure would stand vitiated. Mr. Daga submitted that the only independent witness examined by the prosecution is Sunil Lakhe P.W. 4 the panch who in his evidence fails to mention that in his presence P.H.C. Pali had apprised the appellants that in case they want to exercise their right to be searched in presence of Gazetted Officer or a Magistrate it can be so arranged. On the other hand in his evidence before the Court the panch has deposed "Pali told him the house search and personal search is to be taken". Mr. Daga submitted that as there is no mention of the fact that H.C. Pali did gave the necessary caution to the appellants accused, there is non-compliance of section 50(1) of the N.D.P.S. Act and this itself is sufficient to quash and set aside the conviction of the appellant accused. Mr. Daga further submitted that the prosecution has tried to rely upon an intimation/notice exhibit 47 in order to show that they have complied with the mandatory provisions of section 50(1) of the N.D.P.S. Act. Mr. Daga further submitted that the prosecution has tried to rely upon an intimation/notice exhibit 47 in order to show that they have complied with the mandatory provisions of section 50(1) of the N.D.P.S. Act. According to Mr. Daga, merely giving of notice is not enough as the appellant accused was illiterate and what the police has done is obtained his thumb impression on such writing without explaining to him its contents and therefore, this would not help the prosecution in any manner to demonstrate that the appellant accused has been apprised of his right to be searched in presence of Gazetted Officer or a Magistrate. As there is no independent evidence of such communication, it cannot be held that search and seizure of contraband made from the accused was legal and in accordance with law. 5A. Mr. Daga submitted that so far as the seizure and sealing of the contraband is concerned, it does not bear the seal of the officer who conducted the search and seizure; as in his own evidence P.H.C. Pali has stated that he has used the seal of Laxman Pande. According to Mr. Daga non use of his own seal by the Investigating Officer creates doubt in the prosecution's case and the benefit should be extended to the accused. 6. Mr. Daga submitted that prosecution has miserably failed to prove that the premises in which the police party carried the search and seizure was belonging to the appellant accused Pradip Thakur. It is submitted that only material placed on record by the prosecution in support of their case is a notice issued by election authorities which is Exhibit 52. Mr. Daga submitted that the trial Court has erred in taking this document on record without there being any evidence led by the prosecution to show from where this document Exhibit 52 was procured and from whom it was seized. Therefore, in absence of any evidence to show that the appellant accused No. 1 was the owner of the premises, he cannot be convicted for having committed offence under section 25 of the N.D.P.S. Act. According to Mr. Therefore, in absence of any evidence to show that the appellant accused No. 1 was the owner of the premises, he cannot be convicted for having committed offence under section 25 of the N.D.P.S. Act. According to Mr. Daga the evidence led by the prosecution does not prove the charge against the appellant accused for having committed offence under section 21 or under section 21 read with section 25 of the N.D.P.S. Act and his conviction and sentence deserves to be quashed and set aside and the appeal be allowed. 7. Mr. S.V. Manohar, learned Counsel appearing for the appellant accused Javed Hussain; accused No. 2 submits that the trial Court did not consider the case against the appellant accused No. 2 in proper perspective. It is submitted that the appellant accused when questioned on the point of sentence he did make a fervent appeal that his case falls under section 27(a) of the N.D.P.S. Acts though the trial Court has recorded in its judgment that accused No. 2 was found smoking in the room of accused No. 1 together at the time of search, the Court lost sight of the fact that it was not necessary for the appellant accused Javed to have led any evidence to show his case would fall under section 27(a) of the N.D.P.S. Act. Mr. Manohar submitted that it is the prosecution's case that in the search and seizure contraband was seized from this appellant and at the most what was found in possession of the appellant Javed was one panni and pipe and this by itself go to show that the appellant accused at the most was smoking brown sugar at the time police party raised the premises. Mr. Manohar has sought liberty of this Court to file an affidavit of the appellant accused Javed Hussain under section 233 of the Cr.P.C. to enable him to take defence under section 27(a) of the N.D.P.S. Act, which we have permitted in the interest of justice and accordingly the affidavit dated 22-9-99 has been filed by the appellant accused which is taken on record. 8. 8. If we examine the prosecution's case what we find is that on 3-9-1986 Hemant Pali, P.H.C.; P.W. 5 while on partrolling duty alongwith his team of officers; were moving in Lakadganj area and reached at Marwari Chowk received an information that one Pradip Thakur is selling brown sugar in his residential house; on receiving such information. P.H.C. Pali communicated the same on telephone to his superior P.S.I. Shirbhate who directed him to prepare for raid and that he will meet them at Marwari Chowk and therefore he called for the two panchas disclosed the information to them and as they agreed to act as panch wrote down information received by him which is Exhibit 50. At about 1.30 p.m. P.I. Shirbhate came to the square and so he handed over the written information to him which was acknowledged by P.I. Shirbhate. We therefore do not find that P.H.C. Pali has in any manner committed a default in not communicating the information received by him by taking it down in writing as required under section 42 of the N.D.P.S. Act and therefore the contention of Mr. Daga that there was no compliance of section 42 of the N.D.P.S. Act does not appear to be correct. 9. It has come in the evidence of P.H.C. Pali that he alongwith police party and panchas then moved towards the placed of which they had information, in jeep. They stopped jeep at a distance and proceeded on foot where they enquired about the house and when they came in front of house of Pradip he gave a call to Pradip on which one person asked from the house who was there and came out after opening the door. They saw one person sitting near the door. He disclosed their identity to them. P.H.C. Pali has identified the appellants accused in the Court as the two persons who were found in the house as per the information received by him. According to him the appellant accused No. 1 came outside the door and accused No. 2 remained sitting in the house. He disclosed the identity of the panchas and P.I. Shirbhate to the accused persons and asked the accused No. 2 to sit where he was. According to him the appellant accused No. 1 came outside the door and accused No. 2 remained sitting in the house. He disclosed the identity of the panchas and P.I. Shirbhate to the accused persons and asked the accused No. 2 to sit where he was. Then he told accused No. 1 that he is selling brown sugar, therefore they have to take house search as well as personal search; he then asked the accused persons whether Executive Magistrate or Gazetted Officer are required for the search, but both the accused persons told that the search can be taken. Therefore, he gave a notice, copy of which is at Exhibit 47, to the accused persons; in acknowledgement they obtained their thumb impression mark, the notice is identified by him before the Court, which bears the signatures of the witness, two panchas and the thumb impression of the accused persons. According to H.P.C. Pali, he asked the accused persons to take their search; then he took search of accused No. 1 and found a pudies in his shirt pocket and one pipe and cash of Rs. 250/- from the full pant. Thereafter he took search of accused No. 2 and found one panni and one small pipe. They also found a candle, match box and pieces of cigarette packets and one scissor and also a sum of Rs. 140/- was found in the pant pocket of the pant of the accused No. 2. The witness then opened the 4 pudies seized from accused No. 1; it was containing brown sugar. The brown sugar from the packets were weighed together and it was found to be weighing 420 mg and he drew two samples of 100 mg from it and, prepared the sample packets bearing signatures of panchas, himself and thumb impression mark of accused persons. He then wrapped each sample in paper packet and remaining brown sugar in third paper packet, he marked the same as S-1 and S-2 and remaining brown sugar as P-1. the burnt panni which was found from the accused No. 2 was wrapped in a paper bearing his signature and of panchas and thumb impression mark of accused No. 1. The other articles like scissor, wax candle and cigarette packets pieces were packed in one separate packet. According to this witness he tied each packet with thread and fixed seal on it. The other articles like scissor, wax candle and cigarette packets pieces were packed in one separate packet. According to this witness he tied each packet with thread and fixed seal on it. The panni containing brown sugar with accused No. 2 was marked as S-3 and the other property marked as P-2. He has specifically stated that he was not having seal and therefore, he took seal of H.C. Laxmikant Pande B.No. 3652 who was accompanying the police party. The search and seizure panchanama (Exhibit 37) came to be prepared which came to be signed by the panchas in his presence on which thumb impression of both the accused were also there and thereafter he arrested the accused persons after informing them the purpose of their arrest and handed over copy of panchanama to them. 10. The evidence of H.P.C. Pali on the fact of search and seizure is well corroborated by Sunil Lakhe P.W. 4 who acted as a panch. If we examine evidence of Sunil Lakhe P.W. 4 the panch, we do find that he does not give specific detail about the caution given by P.H.C. Pali to the accused before conducting their search; as regards that if they require search can be taken before Gazetted Officer or a Magistrate for the purpose of their personal search and house search, but only stated that Pali told him the house search and personal search is to be taken and one paper was given to the accused No. 1; the paper was identified by him on the basis of the signature and that the accused No. 1 told that search can be taken. Mr. Daga learned Counsel for the appellant accused No. 1 has attacked the prosecution's case for this deficiency on the part of the panch witness, in order to demonstrate that the prosecution has miserably failed to show that it has complied with the mandatory provisions of section 50(1) of the N.D.P.S. Act. We are anxious of the right available to the person who is to be searched by the police as contemplated in sub section (1) of section 50 of the N.D.P.S. Act. We are anxious of the right available to the person who is to be searched by the police as contemplated in sub section (1) of section 50 of the N.D.P.S. Act. It is now settled law that the right available to an accused under section 50 is mandatory in the nature right from the decision of the Supreme Court in the case of (State of Punjab v. Balbirsingh)1, 1994(3) S.C.C. Page No. 299 followed and referred thereafter in various decisions till the last decision placed before us relating to the case of (State of Punjab v. Baldeo Singh)2, which is a five judges decision the Apex Court, reported in 1999 S.C.R. Criminal (S.C.) page No. 473. What the Court has to examine is that it is imperative for the empowered officer to make aware the person of his right of being searched before the Gazetted Officer of a Magistrate so as to enable him to avail of his right. It is however, not necessary to give this information to the accused in writing; it is sufficient to communicate this information to concerned accused orally and as far as possible in presence of some independent and respectable person who witnesses the arrest and search and that the Courts have to be satisfied about due compliance with the requirement of section 50 of the Act. In the words of the Apex Court in the case of (Syed Mohd. Syed Umar and others v. State of Gujarat)3, 1995(3) S.C.C. 610 , that compliance of section 50 has to be in letter and spirit. Now let us examine whether the prosecution in this case has established that they have complied with mandatory provisions of section 50 of the N.D.P.S. Act, as we have already observed that Panch witness Sunil Lakhe do not in so many words corroborates the caution required to be given to the accused persons before their search is conducted; but in substance he does corroborate P.H.C. Pali on the point that accused persons were forewarned about the house search and personal search and one paper was given to accused No. 1 which he identified as Exhibit 47: if this is read in context with the evidence of P.H.C. Pali, who in clear terms deposed before the Court that he had told accused No. 1 that he is selling brown sugar, therefore, his house and personal search is to be taken. He asked them whether Executive Magistrate or Gazetted Officer is required for the raid. In addition to this he has also given them notice like Exhibit 47 which does record that if they desire the house search as well as personal search would be taken in presence of the Magistrate or the Gazetted Officer of the department and the necessary arrangement can be made as per their desire; but the appellants accused did not avail of presence of Gazetted Officer or Magistrate and showed their willingness to be searched by police party in presence of panchas. This fact is also corroborated by the panchanama Exhibit 37 which also records the fact that a written notice under section 50(1) of the N.D.P.S. Act was served on the accused persons which was read over and explained to them; both the accused persons in presence of panchas told that outside office or was not needed and both of them can be searched; both of them further told them that they were ready to be searched and their thumb mark were taken on the notice. In our view the evidence of Hemant Pali P.W. 5; panch Sanjay (sic Sunil) Lakhe P.W. 4 read alongwith the notice Exhibit 47 and that of P.W. 5 P.I. Shirbhate who was present the relevant time and the relevant portion of the search and seizure panchanama, Exhibit 37, it successfully goes to establish that the prosecution has complied with the necessary requirement of section 50(1) of the N.D.P.S. Act and therefore the search and seizure made is valid and legal. 11. Another contention of Mr. Daga that the appellant accused cannot be found guilty for having committed offence under section 25 of the N.D.P.S. Act also does not find any favour with us, for the simple reason that when the police party reached the house and gave a call in the name of Pradip, appellant accused No. 1 had responded and came out. There is no denial on the part of the appellant accused No. 1 that he was in no manner concerned with the premises in question where the police found appellant accused No. 2 sitting alongwith him and consuming Gard (brown sugar). There is no denial on the part of the appellant accused No. 1 that he was in no manner concerned with the premises in question where the police found appellant accused No. 2 sitting alongwith him and consuming Gard (brown sugar). It has come in the evidence of witnesses namely P.H.C. Pali, P.I. Shirbhate P.W. 6 and the Panch Sunil Lakhe P.W. 4 that the search and seizure came to be conducted at the premises and the appellants accused No. 1 and 2 were found in the premises in question in addition to seizure of contraband from the person of accused No. 1 the police also found the various articles such as wax candle, match box, and cigarette papers etc. which are normally used for consumption of contraband. In the affidavit filed by the appellant accused No. 2 Javed Hussain before this Court has taken a specific plea that on the date and time of the incident he had gone to the house of the accused Pradip Thakur intending to consume the drug; therefore, it can not be said that Javed Hussain was having the control or use of the premises in question. It is not necessary for the prosecution to establish that the appellant accused No. 1 was owner of the premises. In order to satisfy the ingredients of section 25 of the N.D.P.S. Act the prosecution has to establish that whoever being the owner or occupier or having control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of any offence punishable under any provision of the this Act, shall be punishable with R.I. for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. Considering the facts of the case as established by the prosecution against appellant accused Pradip Thakur, we are of the opinion that at the relevant time when the premises came to be raided for the purpose of conducting search, it is the appellant accused Pradip Thakur who was occupying it and was in control of the premises and had knowingly permitted it to be used by co-accused Javed Hussain for consuming contraband and therefore it cannot be said that the prosecution has failed to establish the case against the appellant accused Pradip Thakur for having committed offence under section 25 of N.D.P.S. Act. 12. We also find that evidence led by the prosecution in respect of seizure of brown sugar from the accused weighing 420 mg and the samples drawn out of it were sent for analysis to be Regional Forensic Science Laboratory at Nagpur is satisfactory. The prosecution has established all the links in the chain as regards the entrustment of the seized articles to P.S.I. Tighare who was the duty officer who in turn handed it over to H.C. Satpute of which an entry came to be made in the Muddemal Register and subsequent despatch of the same to the Regional Forensic Science Laboratory through P.C. Deepak has been sufficiently established. The C.A.'s report Exhibit 53 clearly records the receipt of 2 sealed parcels, seals intact. The description of articles contained in the parcels has been stated to be Exhibit (1) Brown coloured powder put in a polythene bag wrapped in paper Labelled S-1 which is one of the samples drawn by the H.C. Pali on seizure of the contraband from the appellant accused No. 1. When this samples was examined by the C.A. it was found to be heroin (Discetylmorphine), which falls under section 2(xvi) of the N.D.P.S. Act. Therefore, the prosecution has proved beyond reasonable doubt that the appellant accused was in possession of Heroin a Narcotic Drug in contravention of section 8(c) of the N.D.P.S. Act which is punishable under section 21 of the N.D.P.S. Act. 13. Now let us examine the case of accused Javed Hussain who has been convicted for having committed offence under section 21 of the N.D.P.S. Act. 13. Now let us examine the case of accused Javed Hussain who has been convicted for having committed offence under section 21 of the N.D.P.S. Act. There can be no doubt as regards the prosecution's case against this accused as the prosecution has sufficiently established that at the time of raid, search and seizure this appellant accused was very much present in the premises and was found consuming Gard (brown sugar). From this accused, police seized piece of glittering cigarette paper in partly burnt condition and cash amount of Rs. 140/- the said articles were sent to the Chemical Analyser. In the result of the analysis the said articles which were marked as Exhibit 2 in the C.A.'s report Exhibit 53 the C.A. detected Heroin (Discetylmorphine); this sufficiently proved that the appellant accused No. 2 was in possession of narcotic drug which is punishable under section 21 of the N.D.P.S. Act. But taking into consideration the prosecution's case as established against this appellant accused we find that the learned Special Judge rather than convicting him under section 21 of the N.D.P.S. Act ought to have considered his case under section 27(a) of the N.D.P.S. Act, as it is the prosecution's own case that this appellant accused was found consuming narcotic drug in the premises. It is true that the doctrine de-minimis does not apply, as held in the case of (Booking v. Roberts)4, 1973(III) All.E.R. page 962, but then in such cases the Court should always examine the possibility as to whether the case of the accused would fall under section 21 or section 27(a) of the N.D.P.S. Act particularly when prosecution comes up with a case which satisfy requirement of section 27(a) of the N.D.P.S. Act. Though the accused may not take such defence as by way of an alternative plea; it is always open to the accused to raise such a plea at any stage of the trial. In the present case the appellant accused did made attempt in this direction when he was questioned on the point of sentence by the Court. Unfortunately, the trial Court ignored the plea and proceeded to convict him under section 21 of the N.D.P.S. Act. In the present case the appellant accused did made attempt in this direction when he was questioned on the point of sentence by the Court. Unfortunately, the trial Court ignored the plea and proceeded to convict him under section 21 of the N.D.P.S. Act. In the case of (Gaunter Edwin Kircher v. State of Goa, Secretariat Panaji, Goa)5, 1993(2) S.C.C. page 145 the Apex Court while considering the case of a German national who was arrested for having committed offence under N.D.P.S. Act and from whom a polythene pouch from his pyjama pocket in which there were tobacco, one cigarette paper packet and two cylindrical pieces of charas came to be seized were 7 and 5 grams respectively. The Supreme Court held that on facts accused has discharged the burden that the contraband was for his personal consumption and was not for sale or distribution and extended the benefit under section 27(a) of the N.D.P.S. Act. We have no hesitation to arrive at the finding that in the present case also on facts the benefit of section 27(a) can be extended in favour of the accused. The appellant accused Javed Hussain in affidavit has in terms admitted the fact that he was an addict as defined in section 2(1) of the N.D.P.S. Act 1985, and on the date and time of incident he had gone to the house of Pradip Thakur intending to consume the drug and as the prosecution case against him is that he was found consuming the drug in the premises of the appellant accused No. 1 Pradip Thakur, his case deserves to be considered under section 27(a) of the N.D.P.S. Act. 14. Therefore, on considering the case against the appellant accused Pradip Raghunathsingh Thakur, we find that the conviction and sentence passed against him for having committed offence under section 21 and section 21 read with section 25 of the N.D.P.S. Act does not call for any interference. His conviction and sentence is therefore, confirmed. His Appeal No. 92/98 is dismissed. 14. Therefore, on considering the case against the appellant accused Pradip Raghunathsingh Thakur, we find that the conviction and sentence passed against him for having committed offence under section 21 and section 21 read with section 25 of the N.D.P.S. Act does not call for any interference. His conviction and sentence is therefore, confirmed. His Appeal No. 92/98 is dismissed. In case of appellant accused, Javed Hussain s/o Khurshid Hussain we find that he can be convicted for offence under section 27(a) of the N.D.P.S. Act and therefore, his conviction under section 21 of the N.D.P.S. Act is converted to one under section 27(a) of the N.D.P.S. Act and in case of sentence, we find that the period already undergone by him before commencement of the trial i.e. from the date of arrest i.e. 3-9-96 till 2-12-96 would be sufficient to meet the ends of justice; particularly in the background of the affidavit filed by him where he has specifically mentioned that with great determination and pursuance, he has now been de-addicted and has stopped the consumption of any narcotic drugs and psychotropic substance. As the appellant accused No. 2 has already spent the sentence, his bail bonds would stands cancelled. The appeal preferred by the appellant Accused No. 2 (93/98) is partly allowed in the aforesaid terms. Order accordingly. -----