B. K. SHARMA, J. ( 1 ) THIS is an appeal against the judgment and order dated 4-3-1997 passed by Sri S. C. Agarwal, the then 1st Additional Sessions Judge, Banda in Special Case No. 26 of 1996, State v. Mahesh whereby he convicted the accused-appellant Mahesh of the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 5000. 00 and in default of payment of fine, to suffer rigorous imprisonment for one year more. ( 2 ) THE prosecution case was that Chandra Mani Pandey, the then Station Officer, G. R. P. , Banda was present in the night of 13-6-1995 alongwith Head Constable Ram Kripal Yadav on train escort checking and law and order duty at the Railway Station, Banda; that at that time he received an information from an informer that two persons, who deal with Charas, are sitting with Charas on the cement bench under the tin shed at platform No. 2 of the station; that believing on this information, he called upon the passengers of the railway station to become witness but no one agreed to become a witness due so the difficulty of being in journey; that on this, he took Constable Jagdish Singh and Constable Vidyadhar Shukla, who were on duty at the platform at that time and after mutual search to ensure that they are not have any illicit item, they proceeded towards the spot pointed by the informer; that on reaching at platform No. 2, the two persons pointed started running towards west from the bench on the platform on seeing them but they were surrounded and arrested by the police party at a distance of about 20 paces at 11. 45 p. m. ; that the arrested persons disclosed their names as Pappu and Mahesh; that before taking their search, he asked them if they wanted to give search in presence of a gazetted officer or a magistrate whereupon they (both the arrested accused) requested the police party to take their search; that on search of accused appellant Mahesh being taken, 25 grams Charas was recovered from the right pocket of his pant for keeping which he had no licence, that the recovered Charas was kept by the Station Officer in a cloth, that the so then sealed the same and prepared a recovery memo of the same in the light of the electricity there and then they returned to the police station along with the arrested accused and his companion and there two separated cases against the arrested accused Mahesh and Pappu were registered. The recovered Charas was sent for examination to the Joint Director, Forensic Laboratory of U. P. Government. A report of the Forensic Laboratory dated 26-8-1995 was positive that the recovered substance was Charas. Separate charge sheet was submitted against each of the arrested accused. Here we were concerned with the trial of attested accused Mahesh. ( 3 ) IN the trial, the ocular testimony about the information, arrest and recovery was given by Chandra Mani Pandey S. O. G. R. P. , Banda (P. W. 3); Constable Vidya Dhar Shukla (P. W. 1) and Constable Ram Kripal Yadav (P. W. 2 ). Necessary link evidence was furnished by the prosecution at the trial and other formal evidence was also produced before the trial Court. The learned Additional Sessions Judge believed the prosecution evidence and so handed down the conviction and sentence aforesaid. ( 4 ) I have heard the learned Amicus Curie appearing on behalf of the accused-appellant in this appal and also the learned A. G. A. ( 5 ) IN this case, the learned Amicus Curie has claimed that there was non-compliance of the mandatory provision of Section 50 of the N. D. P. S. Act inasmuch as he was not informed of his right to get the search of his person made in presence of a gazetted officer or a magistrate. In support of this contention, he has placed reliance on the authority State of Punjab v. Balbir Singh reported in 1994 SCC (Cri) 634 : ( AIR 1994 SC 1872 : 1994 Cri LJ 3702) wherein it was held that Section 50 of N. D. P. S. Act confers a valuable right on the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused and that, therefore, the safeguard conferred under Section 50 is to be taken as an imperative requirement and its non-compliance would vitiate the trial. He has also placed reliance on the authority Nishan Singh v. State of U. P. reported in 1995 JIC 852 : (1995 Cri LJ 3893) delivered by a learned single Judge of this Court and also in this Authority Mukesh v. State reported in (1994) 3 Crimes 337 by the Delhi High Court. In the case of Mukesh, a case of alleged possession of a narcotic drug, where a Police Officer, before making the search, had informed the accused that he could get himself searched before a Gazetted Officer and no mention of the Magistrate was made it was held that the accused was not fully informed of his right and he was entitled to acquittal for the failure on the part of the Police Officer to protect the right of the accused. In the case of Nishan Singh, it was found that the only offer that was made to the accused was that he could get himself searched before a Gazetted Officer and it was not stated that he had an equal right to get himself searched before a Magistrate. The learned single Judge of this Court observed that the Act itself gives two categories of persons before whom the search could have been made at the requisition of the accused and these two categories were Gazetted Officers mentioned in Section 42 and nearest Magistrate, that had the legislature desired that the term Gazetted Officer would cover a Magistrate as well, there was no necessity to mention the term Magistrate in Section 50 and that thus the accused had a right to choose a forum out of both the forums. There is no quarrel with the proposition of law that the accused was entitled to be informed of his right available under Section 50 of the N. D. P. S. Act. ( 6 ) THE question is whether in the present case, the Police Officer making the arrest apprised the accused-appellant of his right to get himself searched before a gazetted officer or before a magistrate. In this case, there is consistent testimony of Chandra Mani Pandey S. O. (P. W. 3) and the two police constable PW1 and PW2 who had joined in the process of arrest, that on being arrested, the accused-appellant was apprised of his right to make his personal search made in the presence of a gazetted officer or a magistrate. It is true that in the recovery memo, prepared by the Station Officer, it has been said that both the arrested accused were asked whether a they want to give their search in the presence of a Gazetted Officer whereupon both of them said that they are everything for them and that they have no objection to their search being taken by them. However, none of these witnesses was confronted with the omission in the recovery memo about the offer to get the search made in the presence of a Magistrate. Since this was not done, I am of the view that there is no reason to discard their testimony given at the trial. It is significant that no suggestion is forthcoming from the side of defence to any of the witnesses of fact that offer was made but only about search before Gazetted Officer or that no offer was made for search before a magistrate. As a matter of fact, there was no suggestion to any of the three prosecution witnesses that no offer was made to the accused-appellant informing him of his right to get himself searched in the presence of a gazetted officer or a magistrate. It may be that in the cross-examination of Vidya Dhar Shukla (P. W. 1) it was said that the accused was told if he wanted to give search in the presence of a Gazetted Officer. It may be that in the cross-examination of Vidya Dhar Shukla (P. W. 1) it was said that the accused was told if he wanted to give search in the presence of a Gazetted Officer. This reply as such cannot be taken to mean that no further offer was made to the accused-appellant as in his examination-in-chief, he had already categorically stated that the accused-persons were asked if they wanted to give their search before a gazetted officer or before a magistrate. If the learned counsel for the accused-appellant had put a suggestion that an offer was not made for search before a Magistrate but an offer was made only for search before a Gazetted Officer and the witness had said that offer was made only about search before a Gazetted Officer and not about a Magistrate, then it might have been a piece of evidence tending to help the defence but there was no such suggestion and there was no such reply. It may be mentioned here that a suggestion to Ram Kripal Yadav (P. W. 2) was made in his cross-examination that he did not take the accused before a magistrate as asked by him, the witness had made a denial about it. But it is a vague suggestion. There was no categorical suggestion made that the accused persons had demanded their search before a Magistrate and the Police declined. Chandra Mani Pandey S. O. (P. W. 3), who was the architect of the raid, was never made a suggestion that the accused-appellant had asked him to produce him before a Magistrate for being searched. Under these circumstances, it cannot be said that the Police Officer aforesaid did not comply with his obligations under Section 50 of the N. D. P. S. Act. ( 7 ) IT may be mentioned here that the omission in mentioning this part of the offer in the recovery memo might have been just accidental. Therefore, I see no reason to differ from the learned Sessions Judge who held on a consideration of evidence that due offer was made to the accused-appellant as required under Section 50 of the N. D. P. S. Act. In my view on the facts of this case, it cannot be said that there was any infraction of the provision of Section 50 of the N. D. P. S. Act. In my view on the facts of this case, it cannot be said that there was any infraction of the provision of Section 50 of the N. D. P. S. Act. ( 8 ) IT has been argued before me that no public witnesses had been taken to witness the raid of the accused-appellant and his companion leading to their arrest. However, all the three witnesses had explained that an effort was made to take public witnesses from the passengers on the platform in that late hour of night i. e. 11. 45 p. m. but none of them was willing to join the raid for the obvious reason that every one was interested in pursuing his journey rather than interrupting it and joining the raid and arrest with which he had no concern and which would or could have delayed his journey indefinitely. It may be that there must be railway officers present in the office of the station master etc. but then it has to be kept in mind that the time at the disposal of the Station Officer (S. O.) was very little and any delay in procuring the witnesses would have surely frustrated the raid itself as in the meantime, the accused would have fled away. The obligation to take public witnesses is not absolute. If after making efforts which the Court considered in the circumstances of the case reasonable, the Police Officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The Court will have to appreciate the relevant evidence and will have to determine whether the evidence of the Police Officers was believable after taking due care and caution in evaluating their evidence. What weight is to be attached to the evidence of the Police Officers would essentially be a question of fact for the trial Court to decide applying hard common sense and recognised principle of re-evaluation of evidence of witnesses. ( 9 ) ONE important circumstance that would be kept in mind by the Court is as to whether the Police Officers concerned had any enmity with or axe to grind against the accused and whether there is anything improper or suspicious in their evidence. ( 9 ) ONE important circumstance that would be kept in mind by the Court is as to whether the Police Officers concerned had any enmity with or axe to grind against the accused and whether there is anything improper or suspicious in their evidence. In this case, the defence suggestion to the prosecution witness of fact V. D. Shukla PW1 is that the accused-appellant was arrested by him from Bhaudaha and taken to Inchauli station on 11-6-1995, that he was arrested in connection with a case of dacoity. It was also suggested to witness Constable Vidya Dhar Shukla (P. W. 1) that three other accused were arrested at Inchauli Railway Station and that those accused persons were got identified from the station masters and others; that money was taken from them and they were let off. It was also suggested to him that on 11-6-1995, they had gone in jeep to Bhaudaha and arrested the accused persons from there and brought them to Banda and kept them confined there for two days and had planted Charas on them and booked them in these cases. There is no documentary evidence or other material forthcoming from the side of defence in this case giving the slightest basis for an inference that this defence plea might be believable. The suggestions are vague. The names of the other persons, who were arrested and let off, have also not been disclosed. Similar suggestion was made to Constable Ram Kripal Yadav (P. W. 2) and Chandra Mani Pandey S. O. (P. W. 3 ). Both of them have denied the suggestion. From Chandra Mani Pandey S. O. (P. W. 3), it was elicited that loot has taken place at Inchauli Railway Station about which a first information report was lodged. He stated that there was no occasion for getting the identification done of the accused persons at Inchauli. He also denied that the present accused and his companion were arrested from Bhaudaha. He further denied the suggestion that Mahesh accused-appellant was made an accused in the present case because he could not become an accused in the case of said loot. It is difficult to place reliance on such vague suggestions. As mentioned above, there is no allegation of enmity between the police and this accused-appellant and his companion at any stage. He further denied the suggestion that Mahesh accused-appellant was made an accused in the present case because he could not become an accused in the case of said loot. It is difficult to place reliance on such vague suggestions. As mentioned above, there is no allegation of enmity between the police and this accused-appellant and his companion at any stage. The Station Officer denied that co-accused Pappu has been arrested in a case of theft of she buffalo. ( 10 ) ON a consideration of the facts and circumstances of the case, there is no reason to doubt the arrest and recovery of contraband Charas from the possession of accused-appellant for which he had no licence whatsoever. ( 11 ) CONSEQUENTLY, this appeal has no force and it is dismissed. The conviction and sentence of accused-appellant Mahesh for the offence under Section 20 of N. D. P. S. Act is maintained. The accused-appellant is under jail custody. He will serve out the remaining part of the sentence according to law. The Registry shall send a copy of this judgment at once to the Ist Additional Sessions Judge, Banda for information and compliance. The compliance report shall be submitted by him to this Court within 15 days from today. Appeal dismissed. .