JUDGMENT - Per R.M.S. KHANDEPARKAR, J.:---This appeal arises from judgment dated 10th December, 1998 passed by the Narcotics Drugs and Psychotropic Substances Court, Mapusa in Special Case No. 18 of 1998. By the impugned judgment, the appellants have been convicted under sections 18 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the N.D.P.S. Act') and sentenced to undergo twelve years rigorous imprisonment each and to pay a fine of Rs. 1,00,000/- each and in default to undergo one year rigorous imprisonment. It is the case of the prosecution that on 13th April, 1998 at about 15.30 hours while the police personnel were on look out for a criminal by name Wilson and in the course of a raid at Sautavade, Calangute in that regard came across certain foreigners and the accused sitting in a shack and on having suspected them of being in possession of the Narcotic drugs, in the search carried out, the accused No. 1 was found carrying 3 kgs. of Opium worth Rs. 1,50,000/- in a bag on his shoulder. The prosecution examined six witnesses in support of the charge. 2. The materials brought on record disclose that on 13th April, 1998 the Investigation Officer Shri Umesh Gaonkar received a phone call from Franky Martin that a criminal by name Wilson who was wanted by the police was seen sitting in Ajit Moraskar's shack at Calangute and on receipt of the said information, the said Investigation Officer along with the police staff proceeded towards the said destination and on reaching the spot noticed some foreigners and the accused sitting in the shack. As the Investigation Officer got the smell of Narcotic drugs, the accused was suspected of carrying in their possession the Narcotic Drugs. On offering themselves to be searched along with the raiding panchas, the Investigation Officer informed the accused that their search can be carried out in the presence of Magistrate or Gazetted Officer if they so desired. Both the accused declined the offer. The accused No. 1 at that time was found carrying a bag on his shoulder and on search of the said bag it was found to contain a pant and shirt and underneath was a cloth bag containing another plastic bag which contained yet another plastic bag having therein a substance which was suspected to be Opium. The accused No. 1 at that time was found carrying a bag on his shoulder and on search of the said bag it was found to contain a pant and shirt and underneath was a cloth bag containing another plastic bag which contained yet another plastic bag having therein a substance which was suspected to be Opium. The substance found in the bag along with the bag and other materials found therein were seized under panchanama and the substance thereafter was sent for chemical analysis which was examined by Mahesh Kaissare, P.W. 1 and was found to contain Morphine. 3. Shri S.G. Dessai, Senior Advocate appearing for the appellants while assailing the impugned judgment submitted that as far as the conviction of the appellants under section 29 of N.D.P.S. Act is concerned, the same is totally contrary to the materials on record as the prosecution has not produced any evidence in support of the charge under section 29 of N.D.P.S. Act. Drawing our attention to the provisions contained in section 29, the learned Senior Advocate submitted that the offence under section 29 requires criminal conspiracy or abatement of criminal conspiracy as defined under sub-section (2) of section 29 and not otherwise. Section 29(2) provides that a person can be said to abet or commit criminal conspiracy in terms of provisions contained in section 29 when such a person in India abets or is a party to the criminal conspiracy to the commission of any act in a place beyond India. Indeed, perusal of the records, as rightly submitted by the learned Senior Advocate for the appellants do not disclose any material as regards the commission of offence of criminal conspiracy or its abetment as contemplated under section 29(2) by any of the appellants. Shri A.P. Lawande, learned Public Prosecutor also fairly conceded that the materials on record in no way suggest commission of offence under section 29 of the N.D.P.S. Act by either of the accused. Being so, and as the materials do not in any way suggest the offence, by either of the appellants, under section 29 of N.D.P.S. Act, the conviction of the appellants under section 29 of the N.D.P.S. Act cannot be sustained. 4. Being so, and as the materials do not in any way suggest the offence, by either of the appellants, under section 29 of N.D.P.S. Act, the conviction of the appellants under section 29 of the N.D.P.S. Act cannot be sustained. 4. As regards the conviction under section 18, the materials are restricted to the acts on the part of appellant No. 1 and there is nothing on record to establish or even to suggest remotely the involvement of the appellant No. 2 in any manner as regards the possession of Opium of 3 kgs. with the appellant No. 1. Being so, as far as the appellant No. 2 is concerned, his conviction under section 18 is also to be set aside. 5. As regards the appellant No. 1 and his conviction under section 18 of the N.D.P.S. Act, the impugned judgment is sought to be assailed on the ground of infraction of section 50 of N.D.P.S. Act, non establishment of the substance to be the Opium to warrant conviction under the N.D.P.S. Act, non establishment of the possession of the drugs with the accused, possibility of tampering with the evidence and non compliance of the provisions of section 52(3), 52(A) and 57 of the N.D.P.S. Act. 6. Drawing our attention to the testimony of P.W. 3 John A. D'Souza, the panch witness and P.W. 5 Umesh Gaonkar, Investigation Officer, it was sought to be contended that there was no proper opportunity afforded to the appellant No. 1 for being made aware about the right of the accused to get the search being conducted in the presence of a Magistrate or Gazetted Officer. According to the learned Senior Advocate for the appellant, the testimony of the panch P.W. 3 discloses that the Investigation Officer had only informed the accused that in case it is desired by the accused, the accused can be examined in the presence of Gazetted Officer or a Magistrate. Bearing in mind the provisions contained in section 50 of N.D.P.S. Act, there was no fair opportunity afforded to the appellant to know that the search was in terms of the provisions contained under section 50 of N.D.P.S. Act and that such a search could be only after giving opportunity of being searched in the presence of a Magistrate or Gazetted Officer. Reliance is also sought to be placed in the matter of (State of Punjab v. Baldev Singh)1, reported in 1998(5) Bom.C.R. (S.C.)448 : A.I.R. 1999 S.C. 2378. He contended that any failure on the part of the prosecution to establish proper compliance of the provisions of section 50 would render the conviction to be illegal. While controverting this contention, learned Public Prosecutor submitted that it is primarily for the Investigation Officer to offer the necessary opportunity to the accused of being searched in the presence of Magistrate or Gazetted Officer after making him aware of the necessity of such a search. Being so, it is primarily necessary to see whether the testimony of the Investigation Officer in that regard is reliable or not and if the same is found reliable and trustworthy the conviction of the accused can be based on such testimony irrespective of the fact that the pancha evidence corroborating such testimony is not found on record. Reliance in that regard is sought to be placed in the matter of (Krishna Mohar Singh Dugal etc. v. State of Goa)2, reported in J.T. 1999(8) S.C. 115. Further drawing our attention to the testimonies of P.W. 5 as well as of P.W. 3, the learned Public Prosecutor submitted that proper reading of both the depositions clearly disclose that the appellant No. 1 was sufficiently made aware of the intention of the Investigation Officer to search the accused as well as the purpose thereof and the opportunity of being searched in the presence of a Magistrate or Gazetted Officer as is otherwise required under section 50 of N.D.P.S. Act. 7. The testimony of P.W. 5 discloses that he had explained to the appellants that they were suspected of being in possession of the drugs and they could be searched in the presence of Gazetted Officer or a Magistrate. The testimony of panch discloses that the conversation between the appellants and Investigation Officer was in Hindi. It was communicated to the appellants that the appellants being suspected of having in possession of drug, they were required to be searched and if they so desired, the search could have been taken in the presence of a Magistrate or Gazetted Officer. The testimony of panch discloses that the conversation between the appellants and Investigation Officer was in Hindi. It was communicated to the appellants that the appellants being suspected of having in possession of drug, they were required to be searched and if they so desired, the search could have been taken in the presence of a Magistrate or Gazetted Officer. The Apex Court in the matter of State of Punjab v. Baldev Singh (supra) has clearly laid down that whether or not the safeguards provided in section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. In Krishna Mohar Singh Dugal etc. v. State of Goa (supra) the Apex Court has observed, after considering the facts of the case, that if the evidence of P.I. Allen D'Sa was to be read carefully it was apparent that he first explained to the appellant therein the purpose of his visit to the place and then told the appellant that he was required to carry out a search of the person of the appellant and also the premises. The Apex Court considering the testimony of the Investigation Officer in the said case held that there was sufficient compliance of the provisions of section 50 of the N.D.P.S. Act. Indeed, it is primarily for the Investigation Officer to make the accused person aware about the facility available to the accused under section 50 of N.D.P.S. Act of being searched in the presence of a Magistrate or Gazetted Officer and in that regard, it is primarily the testimony of the Investigation Officer which is relevant to find out whether the provisions of section 50 of N.D.P.S. Act are complied with or not. The evidence of panch witness can be of corroborative nature. But in the absence of such corroboration, it cannot be stated that the testimony of the Investigation Officer cannot be relied upon even if it is reliable and trustworthy. In this case, the testimony of the panch P.W. 3 clearly corroborates the testimony of the Investigation Officer and clearly establish the compliance of provisions of section 50 of N.D.P.S. Act. 8. The next contention of the appellant is failure on the part of the prosecution to prove that the analysed substance was Opium. In this case, the testimony of the panch P.W. 3 clearly corroborates the testimony of the Investigation Officer and clearly establish the compliance of provisions of section 50 of N.D.P.S. Act. 8. The next contention of the appellant is failure on the part of the prosecution to prove that the analysed substance was Opium. It is sought to be contended that the prosecution has not established the nature of the test which was carried out to find the contents of the substance and secondly, the prosecution has not complied with the guidelines laid down by the Narcotics Control Bureau for testing the seized material. Reliance is sought to be placed by the learned Senior Advocate for the appellant in this regard in the matter of (Pilli Dilli Dora v. State of Orissa)3, reported in 1995 Cri.L.J. 1758 and in the judgment of this Court in unreported matter in Criminal Appeal No. 47/98 decided on 4th March, 1999. Referring to the testimony of P.W. 1 Mahesh Kaissare who is Junior Scientific Officer and who had examined the sample and his report, it was submitted by the learned Senior Advocate for the appellant that neither the witness nor the report discloses details about the test carried out for analysis of the substance and in the absence of evidence in that regard no value can be attached to his testimony. It was further submitted that undisputedly, the substance was twice analysed. At the first instance 8 gms. and at the second instance 16 gms. In terms of the guidelines laid down by the Narcotics Control Bureau, the analyst was clearly required to examine the quantity of 24 gms. considering the allegation that the substance seized was Opium. Drawing our attention to para 9 of the judgment of Orissa High Court relied upon by the appellant it was contended that it was necessary for the analyst to examine the quantity at least in terms of the guidelines to ascertain whether the substance contained Morphine. 9. The evidence of the analyst P.W. 1 clearly discloses that he had conducted necessary test to find out whether the substance disclosed the contents of Opium or not and there is specific statement to that effect in his testimony. 9. The evidence of the analyst P.W. 1 clearly discloses that he had conducted necessary test to find out whether the substance disclosed the contents of Opium or not and there is specific statement to that effect in his testimony. The same was neither disputed nor challenged in any manner and, therefore, it cannot be contended that there was no proper test conducted by the analyst to find out whether the substance contains Morphine or not. As regards the decision of the Orissa High Court in relation to the guidelines stated to have been laid down by the Narcotics Control Bureau as regards the requirement of the quantity of 24 gms. for the purpose of test, we have no benefit of perusing the so-called guidelines issued by the Narcotics Control Bureau and only a reference is to be made to some extracts which have been quoted in the judgment of the Orissa High Court. Unless the entire guidelines stated to have been issued by the Narcotics Control Bureau are placed before us, it is not possible to ascertain whether the said guidelines are of mandatory in nature and whether there is any infraction of any guidelines by the analyst in the case in hand. Perusal of the judgment of the Orissa High Court wherein Clause No. 1.6 of the guidelines stated to have been issued by the Narcotics Control Bureau has been quoted and it reads thus :- "1.6 Quantity of different drugs required in the sample : The quantity to be drawn in each sample for chemical test should be 5 grams in respect of all narcotics drugs and psychotropic substances except in the cases of opium, ganja and charas/hashish where a quantity of 24 grams in each case is required for chemical test. The same quantities should be taken for the duplicate sample also. The seized drugs in the packages/containers should be well mixed to make it homogenous and representative before the sample in duplicate is drawn." The judgment of the Orissa High Court itself clearly discloses that the said guidelines were in relation to the quantity of the sample that was required to be drawn for chemical test and it does not relate to the quantity which was required to be utilised for the purpose of chemical test. There is a difference between the quantity of the sample to be drawn for the purpose of sending the same for analysis and the quantity to be utilised for the chemical test itself. The Clause 1.6 on the face of it speaks about the quantity to be drawn for each sample and not the quantity to be tested for the test. Being so, even assuming that the guideline Clause 1.6 is from the guidelines issued by the Narcotics Control Bureau in terms of the provisions of N.D.P.S. Act, on the face of it, and considering the facts of the case and particularly that the fact that the sample drawn was of 30 grams of the substance and the same was subjected to the chemical test, no fault can be found with the chemical analysis conducted by P.W. 1 in relation to the substance seized by the Investigation Officer. 10. It was also sought to be contended that the report of P.W. 1 does not disclose that the percentage of morphine substance was less than 0.2 per cent. In that regard, reference is made to the definition of the expression of the term "Opium" and "Opium derivative" in section 2(xv) and (xvi) respectively in N.D.P.S. Act. In terms of section 2(xv) Opium means the coagulated juice of the opium poppy and any mixture with and without any neutral material of the coagulated juice of the opium poppy but does not include any preparation containing not more than 0.2 per cent of morphine. While the expression Opium has been defined in section 2(xvi) to include all preparations containing more than 0.2 per cent of morphine or containing any diacetylmorphine. In other words, preparations containing less than 0.2 per cent of morphine is classified under the head of Opium whereas the preparations containing more than 0.2 per cent of morphine is termed as "morphine derivative" under N.D.P.S. Act. Once, the definition clearly discloses that any substance containing a preparation less than 0.2. per cent of morphine can be termed as "Opium", any specific mention as regards the percentage below 0.2 per cent is of no relevance. It is in case the percentage of morphine exceeds certainly the substance can be classified as Opium derivative. Undisputedly, the appellants were charged of being in possession of Opium and not Opium derivative. per cent of morphine can be termed as "Opium", any specific mention as regards the percentage below 0.2 per cent is of no relevance. It is in case the percentage of morphine exceeds certainly the substance can be classified as Opium derivative. Undisputedly, the appellants were charged of being in possession of Opium and not Opium derivative. Therefore, once the chemical analysis disclose the substance to contain morphine, it clearly establishes that the substance was Opium unless it was specifically disclosed to contain morphine of more than 0.2 per cent. There is no much substance about the grievance made in relation to two tests carried out by the chemical analyst first of the quantity of 8 grams and next of 16 grams. No conclusion adverse to the prosecution can be drawn from such two tests stated to have been carried out by the analyst. 11. It is next contended that the prosecution had not established that the appellants were found in possession of the Opium. However, the evidence on record clearly discloses that the appellant No. 1 was found to be carrying a bag on his shoulder which contained a substance which was suspected of being Opium and after the same being tested by the analyser it was confirmed to contain morphine. The evidence of the Investigation Officer duly corroborated by panch clearly discloses that the Investigation Officer while he had gone to the site in search of a wanted person by name Wilson found the accused carrying a bag and on suspecting the same to contain the drugs the accused were subjected to search. In the course of the search, the bag was found to contain a pant and shirt and underneath a cloth bag. The said cloth bag was containing another plastic bag wherein there was yet another plastic bag which contained the substance which was seized by the Investigation Officer under the panchanama and thereafter was subjected to chemical analysis. The testimony of P.W. 5 as well as of P.W. 3 Investigation Officer and panch in that regard has not been shaken and on proper reading of the same clearly discloses that the prosecution has clearly established that the appellant No. 1 was at the relevant time carrying the substance Opium of 3 kgs. in the bag which he was carrying on his shoulder. 12. in the bag which he was carrying on his shoulder. 12. It was then submitted that the Investigation Officer did not comply with the mandate of sections 52(3), 52(A) and 57 of the N.D.P.S. Act. However, it is an undisputed fact that the raid was conducted by the Police Inspector of Calangute Police Station and the site in question falls within the jurisdiction of the said Police Station apart from the fact that Calangute Police Station is the nearest Police Station from the said site. Section 52(3) requires that every person arrested and the article seized under sub-section (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to the officer-in-charge of the nearest Police Station or the officer empowered under section 53. Undisputedly, the Investigation Officer in the case in hand is the officer-in-charge of the nearest Police Station and being so no fault can be found with the Investigation Officer for depositing the seized articles at the Calangute Police Station on the day the same were seized. 13. As regards section 52(A), the same has no application at all in the case in hand as it pertains to disposal of the Narcotics Drugs and Psychotropic Substances. The sample to be drawn in terms of sub-section (2) thereof is at the time of inventory of the drugs and substances pursuant to a decision for disposing of such drugs and substances under sub-section (1) of the said section. 14. As regards section 57 of the N.D.P.S. Act, the same requires that whenever a person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. While referring to the provisions of section 57 reliance is sought to be placed on the statement of P.W. 5 to the effect that Exhibit P.W. 5/C does not disclose the acknowledgement of SDPO and SP and that there is no entry about the intimation to SDPO or SP. However, the report on the face of it clearly discloses that the copy of the same was submitted to the SDPO, Mapusa and SP North at Panaji. However, the report on the face of it clearly discloses that the copy of the same was submitted to the SDPO, Mapusa and SP North at Panaji. The testimony of P.W. 5 further disclose that the station diary Entry No. 28 clearly refers to P.C. No. 3351 having been sent for tapal duty at Mapusa and Panaji at 1.10 p.m. though there is no specific entry regarding the report under section 57 of N.D.P.S. Act. Therefore, there is no substance in the contention that the evidence on record does not disclose remittance of the report by the Investigation Officer to the superior officer. Even otherwise, as rightly submitted by the learned Public Prosecutor, this Court in the matter of (Hemant Vyankatesh Agwan v. State of Maharashtra)4, 1990(1) Bom.C.R. 433 has clearly held that the provisions of section 57 are directory in nature and what the Court is expected to consider is whether there are any breaches in relation to the said provision and if there is any explanation for the same. If, the breaches remain unexplained certainly the accused can claim benefit therefrom. In the case in hand, the materials on record disclose that the report under section 57 was duly transmitted to P.C. No. 3351 and the said evidence has not been challenged or disputed in any manner and being so, there is no substance in the contention regarding non compliance of the provisions of section 57 of the N.D.P.S. Act. 15. Considering the evidence on record, there is no doubt that the prosecution has not been able to establish anything to show that accused No. 2 was in any manner connected with the drugs found in the bag which was on the shoulder of the appellant No. 1. Being so, there can be no doubt that the appellant No. 2 is entitled to be acquitted from the charges under section 18 of the Act and the appeal to that extent is to be allowed. However, as regards the appellant No. 1 the prosecution has clearly established that he was found carrying with him the Opium in the bag on his shoulder at the relevant time. The learned Special Judge on detail analysis of the evidence on record has also arrived at the same finding and we do not find any case for interference in the said finding. The appeal by the appellant No. 1 fails. 16. The learned Special Judge on detail analysis of the evidence on record has also arrived at the same finding and we do not find any case for interference in the said finding. The appeal by the appellant No. 1 fails. 16. In the result, the appeal partly succeeds. The impugned judgment as far as it convicts the appellant No. 2 under sections 18 and 29 of N.D.P.S. Act is hereby set aside and the appellant No. 2 is ordered to be set at liberty forthwith unless he is required in any other case. 17. As regards the appellant No. 1, the appeal in relation to the conviction under section 29 is hereby allowed and his conviction under said section is hereby set aside. As far as the conviction under said section 18 of N.D.P.S. Act, no interference is called for and the same is hereby confirmed and the appeal to that extent is dismissed. Appeal partly allowed. -----