JUDGMENT: This appeal has been preferred by the accused against the conviction and sentence imposed on her under Sec.21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 imposing a sentence of 10 years rigorous imprisonment apart from a fine of Rs.1,00,000 and in default to pay the fine, to undergo further rigorous imprisonment of one more year. 2. The case of the prosecution in brief is that on 14.10.1995 at 3.30 p.m., P.W.5 received an information from an informant as recorded under Ex.P-3, that after forwarding Ex.P-3 to his immediate superior at Chennai, he along with his assistant and Head Constable went to the Tiruchirapalli Police Station to fetch a lady constable, that thereafter along with P.W.3, P.W.5 met P.W.1 Village Administrative Officer and took both P.W.1 and his Assistant P.W.2 at about 5.15 p.m. to Door No.18 of Ashok Nagar, near Karumandapam, Trichy. It is claimed that the door of the said house was locked inside, that P.W.5 knocked the door, when the appellant opened the door to whom P.W.5 informed about his intention to make a search of her house as well as her person, that P.W.5 offered to the appellant as to whether she would like to get herself examined in the presence of a Magistrate or a Gazetted Officer, to which the appellant stated that P.W.5 himself can make the search, that after recording her consent under Ex.P-1, and after obtaining her signature, P.W.5 called some third parties available there to act as independent witnesses to the search and since they refused to act as witnesses, the search of the house was conducted in the presence of P.Ws.1 and 2. It is further claimed that when P.W.5 attempted to make a search of the front left side room, the appellant herself came forward and stated that she is having some heroin and so saying, she went to the eastern corner of the room and produced an yellow colour bag in which there was ever silver (stainless steel) box which contained a parcel covered in mild blue colour polythene cover, that it contained a substance in a white polythene cover and when questioned, the appellant stated that the said packet contained heroin. It is also claimed that according to the appellant, the parcel contained heroin of 200 gms. and was purchased from some unidentified persons with a view to smuggle it away to Ceylon. It is also claimed that according to the appellant, the parcel contained heroin of 200 gms. and was purchased from some unidentified persons with a view to smuggle it away to Ceylon. It is also claimed that thereafter when the appellant was searched by P.W.3 the lady constable in her person, nothing could be traced from her. According to the prosecution when the pocket contained heroin was weighed, the weighment showed a quantity of 200 gms. It is also claimed that on a sample test which was made at the spot, it was ensured that the contents were heroin. Thereafter according to P.W.5, necessary samples were taken and after recovering the materials around 6.00 p.m., the list of materials was prepared in which the signatures of all the persons available including the accused was obtained and a copy of it was handed over to the appellant. Thereafter, after arresting the appellant around 7.00 p.m., based on Ex.P-5 F.I.R., a case was registered in Cr.No.45 of 1995 in the police station. The appellant was produced before the Magistrate on 15.10.1995 and report under Sec.57 was forwarded to the superior of P.W.5 under Ex.P-6 required under law. 3. Based on the above, the case was laid against the appellant before the Special Court and P.Ws.1 to 6 were examined on the side of the appellant. Exs.P-1 to P-7 were marked and four material objects were presented. Based on the above, the trial Court came to the conclusion that the charge against the appellant was proved beyond all reasonable doubt and accordingly convicted and sentenced the appellant as stated above. 4. According to the learned counsel for the appellant when P.W.5 claimed that6 he sent Ex.P-3 information immediately by post and when Ex.P-3 shows that the same was received on 16.10.1995, there is considerable doubt as to whether Ex.P-3 was sent on 14.10.1995 as claimed by P.W.5 in as much as 14.10.1995 and 15.10.1995 were Saturday and Sunday and admittedly the information was received late in the evening. The learned counsel contended that there was no material to show that the report under Sec.42 was sent forthwith to prevent any manipulation of records, that when Sec.57 report which was sent on 15.10.1995 was received on 16.10.1995, there was no evidence to show that it was really posted on 15.10.1995, that the postal register said to have been maintained was also not produced and therefore there was a time gap to fill up all the formalities. In such circumstances, according to the learned counsel, the non-compliance of Sec.42 of the Narcotic Drugs and Psychotropic Substances Act would belie the case of the prosecution. The learned counsel also contended that there was non-compliance of Sec.50 of the Act and on this ground also, the conviction is liable to be set aside. It was also contended that P. W.5 who received the information, registered the F.I.R. and also conducted further investigation which would defeat the very object of the Act and on this ground as well as the conviction is liable to be set aside. According to the learned counsel, the seizure of the contraband not being associated with any independent witnesses inspite of the fact that there were nearly 60 or 70 persons present at the time of seizure would also vitiate the proceedings. According to the learned counsel, the evidence of P.Ws.1 and 2 is of no assistance as they did not speak about the compliance of Sec.50. It is also contended that Ex.P-1 is inadmissible in evidence and Ex.P-2 does not disclose the compliance of Sec.50 of the Act. It is contended that Sec.57 report did not contain the details and there was no other contemporaneous document to show that Sec.50 was complied with. It was therefore contended that by solely relying upon the version of P.Ws.3 and 5 relating to the compliance of Sec.50, the case of the prosecution cannot be accepted. According to the learned counsel, the evidence of P.Ws.1 and 3 does not reveal that the police took any effort to call any independent witnesses nor did they refer to compliance of Sec.50 and P.W.2 did not even refer to Ex.P-1 and therefore their evidence cannot be relied upon. The learned counsel contended that the very fact that P.Ws.1 and 2 were taken along with P.W.5 would show that he had no intention of calling any one from local place to act as independent witness. The learned counsel contended that the very fact that P.Ws.1 and 2 were taken along with P.W.5 would show that he had no intention of calling any one from local place to act as independent witness. It was further contended that there was no evidence on record to show that after 15.10.1995 till it was produced before the Special Court, how the contraband was handled in between. According to the learned counsel, under Ex.P-7, it transpires that the forensic laboratory received contraband from the Special Court along with the covering letter dated 26.10.1995 and the chemical examiner was also not examined in the Court. It was therefore contended that under Sec.293, Crl.P.C. when it requires that it should be duly submitted to him, in the absence of the examination of the concerned police constable Abanda Raju and the chemical examiner, there was noncompliance of the procedure prescribed under Sec.293 of Crl.P.C. The learned counsel would contend that a reading of the evidence of P.W.6 disclosed that there was one other person available for conducting investigation and in such circumstances, the investigation conducted by P.W.5 was not legally valid. The learned counsel also argued that there was noncompliance of Sec.52-A read with Sec.55 of the Act. 5. Elaborating on his submissions, the learned counsel for the appellant contended that when Exs.P-3 and P-6 were received by the immediate superior on 16.10.1995, in the absence of the production of the postal register, the only inference that could be drawn is that both the communications should have been sent simultaneously to the superior officer so as to reach him on 16.10.1995. If that be so, there could have been non-compliance of Sec.42(2) of the Act as claimed by the prosecution. The learned counsel also contended that since the arrest of the appellant was made at 6.15 p.m. i.e., after sun set, proviso to Sec.42(1) was also attracted and in the absence of necessary reasons recorded, the action of the prosecution became invalid. 6. The learned counsel also contended that since the arrest of the appellant was made at 6.15 p.m. i.e., after sun set, proviso to Sec.42(1) was also attracted and in the absence of necessary reasons recorded, the action of the prosecution became invalid. 6. As regards the violation of Sec.50 of the Act, the learned counsel contended that the version of P.W.3 and P.W.5 cannot be accepted as the same was not corroborated by P.Ws.1 and 2, that there was no contemporaneous records to confirm the compliance of Sec.50 including the report sent under Sec.57 or the Mahazar, that Ex.P-1 so called recording of offer made and signed by the appellant was inadmissible in evidence, that P.W.5 did not take any effort to call any independent witness when admittedly 40 or 50 persons were gathered around the place of occurrence, that the very fact that P.W.5 took P.Ws.1 and 2 along with him disclose that he never had the intention to call any independent witnesses and that the claim of P.Ws.3 and 5 about the calling of independent witnesses could not be believed. The learned counsel relied upon Koluttumottil Razak v. State of Kerala, 2000 S.C.C. (Crl.) 829, State of Punjab v. Baldev Singh, 1999 S.C.C. (Crl.) 1080 and T.Hamza v State of Kerala, 2000 S.C.C. (Crl.) 216, in support of his abovesaid contentions. The learned counsel also contended that the investigation carried out by P.W.5 was vitiated. 7. As against the above said submissions made on behalf of the appellant, Mr.Karthikeyan, the learned Public Prosecutor would contend that by virtue of the ruling reported in Ramalingam v. State of Tamil Nadu represented by Inspector of Police, NIB, Madurai City, (1999)2 L.W. (Crl.) 762 and Gopal Gani Ram and others v. Superintendent of Customs and Central Excise C. I. U., Tiruchirapalli, 1999 M.L.J. (Crl.) 397, rendered by he learned Judges of this Court following the Judgment of the Honourable Supreme Court, nothing illegal in P.W.5 himself conducting the investigation. As regards the noncompliance of Sec.50, the learned Public Prosecutor would contend that inasmuch as there was no search on the person in regard to the contraband seized from the premises in question, there was no necessity at all to comply with Sec.50 of the Act. As regards the noncompliance of Sec.50, the learned Public Prosecutor would contend that inasmuch as there was no search on the person in regard to the contraband seized from the premises in question, there was no necessity at all to comply with Sec.50 of the Act. In other words, he would contend that inasmuch as the appellant herself voluntarily produced the stainless steel box that too, from the shelf situated in the room of the premises, there was absolutely no need or necessity for the prosecution to resort to Sec.50 of the Act. In support of his submission, the learned Public Prosecutor relied upon State of Punjab v. Baldev Singh, 1999 S.C.C. (Crl.) 1080. As regards the argument based on the proviso to Sec.42(1), the learned Public Prosecutor would contend that the said proviso would not get attracted, in as much as, the same will not apply to the case of an arrest and when the search and seizure were made well before the sun set, there was no question of compliance of the proviso to Sec.42(1). The learned Public Prosecutor contended that the arrest is not covered by Sub-sec.(2) to Sec.41 and therefore the argument on the violation of proviso Sec.42(1) is not sustainable. The learned Public Prosecutor relied upon Mohd. Hussain v. Union of India, 2000 S.C.C. (Crl.) 191. As regards the validity of Ex.P-1, the learned Public Prosecutor by relying upon State of Uttar Pradesh v. Boota Singh and others, 1979 M.L.J. (Crl.) 290 end State by Public Prosecutor v. Devarajan and another, 1990 L.W. (Crl.) 213, contended that the same was perfectly justified and the action of the prosecution cannot be found fault with. As regards the non examination of independent witnesses, the learned Public Prosecutor would contend that by virtue of the judgment reported in State of Orissa v. S.Mohanty and others, 2000 Crl.L.J. 3469, there was no legal necessity for an empowered officer to comply with Secs.100 and 102, Crl.P.C. and therefore the same would not vitiate proceedings. 8. As regards the non examination of independent witnesses, the learned Public Prosecutor would contend that by virtue of the judgment reported in State of Orissa v. S.Mohanty and others, 2000 Crl.L.J. 3469, there was no legal necessity for an empowered officer to comply with Secs.100 and 102, Crl.P.C. and therefore the same would not vitiate proceedings. 8. The learned Public Prosecutor would further contend that by virtue of Sec.141(e) of the Evidence Act and in the context of the Initials of the Magistrate being found in F.I.R. as well as the properties which contained the date 15.10.1995, there is no scope to doubt the claim of the prosecution that Exs.P-3 and P-6 were properly forwarded to the immediate superior and since properties were in Court custody right from 15.10.1995, there was no scope for tampering with the records of materials by the prosecution party. As regards noncompliance of Sec.55, the learned Public Prosecutor would contend that since the investigation was conducted by the empowered officer under Sec.53, his action cannot be found fault with. As regards the violation of Sec.52(A) of the Act, the learned Public Prosecutor would contend that when properties and records were submitted before the Court on 15.10.1995 itself as disclosed in the evidence of P.W.5 and Ex.P-2, there is no scope for doubting the case of the prosecution. He also relied upon Karnail Singh v. State of Rajasthan, (2000)7 S.C.C. 632 , in support of his submissions. 9. As regards the violation based on Sec.52(A) of the Act, the learned Public Prosecutor relied upon Gopal Gani Ram and others v. Superintendent of Customs and Central Excise, CIU, Tiruchirapalli, 1999 M.L.J. (Crl.) 387. The reliance was also placed on Kanhailal Chowhan v. State of West Bengal, 1995 Crl.L.J. 3283, to counter argument of violation of Sec.50 of the Act. The learned Public Prosecutor also contended that P.Ws.1 to 3 have spoken to about the compliance of Sec.50 and having regard to the ruling of the Honourable Supreme Court reported in Port Adithan v. Deputy Director, N.C.B., Madras, 1999 S.C.C. (Crl.) 1051, it cannot be held that there was any violation at all of Sec.50 of the Act. 10. The learned Public Prosecutor also contended that P.Ws.1 to 3 have spoken to about the compliance of Sec.50 and having regard to the ruling of the Honourable Supreme Court reported in Port Adithan v. Deputy Director, N.C.B., Madras, 1999 S.C.C. (Crl.) 1051, it cannot be held that there was any violation at all of Sec.50 of the Act. 10. The learned counsel for the appellant in his further submissions contended that under Sec.42 of the Act, the report contemplated under that Section should have been sent forthwith and when the report under Sec.57 reached the hands of the Superior Officer or. 16.10.1995 which was admittedly sent one day later than the date on which the report under Sec.42 was sent, the prosecution has failed to prove that compliance of Sec.42 was strictly adhered to. The learned counsel also referred to Saiyad Mohd. Saiyad Umar Saiyad and others v. State of Gujarat, 1995 S.C.C (Crl.) 564: 1995 Crl.L.J. 2662 and C.Ali v. State of Kerala, 1999 S.C.C. (Crl.) 1183 and contended that even as per Sec.114(e) of the Evidence Act, the action of the prosecution should be mandatory while complying with Sec.42 and it cannot be taken that such compliance could be carried out leisurely. The learned counsel by relying upon Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000 S.C.C. (Crl.) 496, contended that which apply to Sec.50 will equally apply to sec.42 as well. The learned counsel by relying upon Mohinder Kumar v. State of Panaji, Goa, 1995 Crl.L.J. 2074, contended that the requirement contemplated under the proviso to Sec.42 should have been carried out forthwith and inasmuch as the prosecution failed to comply with the said proviso, the same would vitiate the proceedings. As regards the non compliance of Sec.50, the learned counsel by referring to State of Uttar Pradesh v. Boota Singh and others, 1979 M.L.J. (Crl.) 290: A.I.R. 1978 S.C. 1774 contended that the judgment reported in 1990 L.W. (Crl.) 1213 is distinguishable and by applying the former judgments of the Honourable Supreme Court it should be held that Ex.P-1 would stand excluded in which event the available evidence is only that of P.Ws.2 and 6. Since P.Ws.2 and 6 are not independent witnesses, the Constitutional Bench judgment alone would apply and in the absence of independent witnesses speaking to the effect about the compliance of Sec.50 it should be held that there was a violation of Sec.50 of the Act in this case. The learned counsel also contended that: at the time of handing over the stainless steel box since the appellant was intrinsically having the contraband, it should be construed that the search was on the person and therefore the compliance of Sec.50 became mandatory in this case. The learned counsel contented that there was no explanation as to how the property was handled in between 15.10.1995 and 26.10.1995 and when the chemical examiner and the Messenger who carried the contraband to the Laboratory were not examined, by virtue of operation of Sec.293, Crl.P.C. there was every scope for tampering with the contraband at the instance of the prosecution. 11. The sum and substance of the submission of the learned counsel for the appellant is that (i) there was a violation in sending the report as contemplated under Sec.42(1)(2) and proviso to Sec.42(1); (ii) that there was a violation of the mandatory requirement of Sec.50; (iii) that by virtue of the Officer who received the information and who registered the F.I.R. having conducted the investigation, the same would defeat the object of the Act; (iv) that in the absence of independent witnesses associated with the seizure, the compliance of Sec.50 as claimed by the prosecution party cannot be accepted; (v) that merely going by the version of P.Ws.3 and 5, the compliance of Sec.50 cannot be accepted; and (vi) that in the absence of proper evidence to show how the seized contraband was dealt with in between 15.10.1995 and 26.10.1995, there is every scope for tampering with the seized contraband and in the circumstances the case of the prosecution cannot be believed. 12. As against the said submissions, the stand of the learned Public Prosecutor was that by virtue of the decisions of the Honourable Supreme Court which had been followed by our High Court in various decisions, there was nothing wrong in the officer who received the information being an empowered officer under Sec.53 in carrying out the investigation also. 12. As against the said submissions, the stand of the learned Public Prosecutor was that by virtue of the decisions of the Honourable Supreme Court which had been followed by our High Court in various decisions, there was nothing wrong in the officer who received the information being an empowered officer under Sec.53 in carrying out the investigation also. According to the Public Prosecutor in the case on hand, Sec.50 was not at all attracted inasmuch as the seizure was from the premises and not from the person. As regards the proviso to Sec.42, the case of the prosecution was that it does not talk of the case of arrest and since the search was well before sun set, proviso to Sec.42 never got attracted. The learned Public prosecutor would contend that by virtue of operation of Sec.114(e) of the Evidence Act and having regard to the initials of the Magistrate and the F.I.R. which disclose that the property reached the Magistrate’s Court on 15.10.1995, there is no room to doubt about the sending of the report under Sec.42 on 14.10.1995 and the despatch of Sec.57 report on 15.10.1995. It is also contended that when once the properties were left with the Court as early as on 15.10.1995, there was no scope for tampering with the material kept in Court by the prosecution. 13. On an analysis of the evidence placed before the trial Court, I find that P.W.5 recorded the information under Ex.P-3 about the contraband kept by the appellant in a house at D.No.18 Ashok Nagar, Karumandapam, Trichy. He claimed to have sent the said information to his immediate superior under Ex.P-3 on the very same day. Thereafter, it is claimed that since the appellant was stated to be a lady, he wanted to have the assistance of a lady constable and accordingly took P.W.3 around 4.00 p.m. and he also took along with him P.Ws.1 and 2 who are the village Administrative Officer and his assistant. Thereafter, it is claimed that since the appellant was stated to be a lady, he wanted to have the assistance of a lady constable and accordingly took P.W.3 around 4.00 p.m. and he also took along with him P.Ws.1 and 2 who are the village Administrative Officer and his assistant. On arriving at the scene of occurrence i.e., at the house of the appellant, after knocking at the door, and as soon as the appellant appeared on the scene, the appellant was informed about their intention to make a search and the option available to her to get herself examined in the presence of a Magistrate or a Gazetted Officer and the appellant on expressing her desire to get herself, as well as her house, examined by P.W.5 disclosed under Ex.P-1, proceeded to initially make a search of the louse. The stand of P.W.5 was that after recording Ex.P-1 when he invited third parties who were present there to act as independent witnesses, none of them came forward to act as independent witnesses and in such circumstances, he caused the search of the house in the presence of P.Ws.1 and 2. It is relevant to note that at that juncture, the appellant came forward on her own and handed over a stainless steel box kept in an yellow bag which was found in the eastern corner of the room, which contained the contraband Heroin of 200 gms. It was based on the above said seizure, the prosecution has laid the charge against the appellant. P.W.5 claims that Ex.P-3 report was sent by him immediately after he received the information 14.10.1995 at 15.30 hours to his immediate superior at Chennai. It is also on record that the said report was received by his superior on 16.10.1995. After carrying out the search and seizure and also the arrest of the appellant after registering the F.I.R. in Cr.No.45 of 1995, the report under Sec.57 was also sent by P.W.5 under Ex.P-6 on 15.10.1995. It is also stated to have been received by his immediate superior on 16.10.1995. After carrying out the search and seizure and also the arrest of the appellant after registering the F.I.R. in Cr.No.45 of 1995, the report under Sec.57 was also sent by P.W.5 under Ex.P-6 on 15.10.1995. It is also stated to have been received by his immediate superior on 16.10.1995. Merely because the report under Sec.42 as well as the one sent under Sec.57 which were sent on two different dates namely on 14.10.1995 and 15.10.1995 reached the hands of immediate superior on 16.10.1995, I am not able to see any legal lacuna or a doubting circumstances so as to disbelieve the case of the prosecution, especially when it is on record that all material papers along with the seized contraband were placed before the Magistrate on 15.10.1995 itself. I therefore hold that the report under Sec.42 was forwarded by P.W.5 as claimed by him on the very date when he received the information under Ex.P-3. 14. As regards the non-compliance of Sec.50 of the Act on the facts involved in this case, it could be safely concluded that the seizure of the contraband was from the premises at D.No.18, Ashok Nagar, Karumandapam, Trichy. When P.W.5 and his party were attempting to cause a search on the said premises, the appellant voluntarily disclosed the availability of the contraband in a shelf situated in the main room of the said house. Therefore, the search was not on the body of the appellant. In fact no recovery was ever made from the person of the appellant, after seizure of the contraband contained in the stainless steel box. When once the seizure was not from the body of the person, the seizure of the contraband cannot be held to be from the person of the appellant. I am not able to accept the submission that the contraband should be held to be intrinsically connected with the appellant. It is not the case that at the time of search, the appellant was holding the stainless steel box kept in the yellow bag so as to hold that she was intrinsically connected with the contraband. On the other hand the evidence in this case disclose that the box along with the bag was lying in a shelf in the room far away from the person of the appellant. On the other hand the evidence in this case disclose that the box along with the bag was lying in a shelf in the room far away from the person of the appellant. Merely because, the appellant took it out from the shelf, it cannot be held that she was intrinsically connected with the contraband seized so as to attract Sec.50 of the Act. The learned counsel for the appellant relied upon the judgment reported in 2000 S.C.C. (Crl.) 829 in support of this submission relating to violation Sec.50 of the Act. On a perusal of the said judgment, I find that admittedly in that case the seizure of the contraband was pursuant to a search caused on the body of the accused. Further more in that case, the prosecution witness admitted that the search on the body of the accused was carried out after the arrest of the accused. It was in these circumstances, the Honourable Supreme Court was pleased to hold that there was a violation of the mandatory requirement of Sec.50 of the Act. As no contraband was seized by causing any search on the body of the appellant, the said judgment is not applicable to the facts of this case. 15. The learned counsel then relied upon State of Punjab v. Baldev Singh, 1999 S.C.C. (Crl.) 1080. In paragraph 25 of the said judgment, their Lordships have held that it is safe if option available under Sec.50 is communicated to the person concerned orally and as far as possible in the presence of some independent and responsible person witnessing the arrest and search. In paragraph 25 of the said judgment, their Lordships have held that it is safe if option available under Sec.50 is communicated to the person concerned orally and as far as possible in the presence of some independent and responsible person witnessing the arrest and search. Ultimately in paragraph 32, their Lordships were pleased to hold “....therefore without expressing any opinion as to whether the provisions of Sec.50 are mandatory or not, but bearing in mind, the purpose for which the safeguard has been made, we hold that the provisions of Sec. 50 of the Act multiplicitly make it imperative or obligatory and cast a duty of the Investigating Officer (empowered officer) to ensure that search of the person (suspect) concerned is conducted in the manner prescribed under Sec.50 by intimating to the person concerned about existing of his right if he so requires, he shall be searched before a Gazetted Officer or a Magistrate and in case he so desires failure to conduct the search before a Gazetted Officer or a Magistrate would cause prejudice to the accused and the recovery of the illicit article suspect and vitiate the conviction and sentence of the accused, there the conviction has been recorded only on the basis of the possession of the illicit article recovered during the search conducted in violation of the provisions of Sec.50 of the Act....” Therefore if the recovery of the article was not from the body of the person concerned, there is no scope for applying Sec.50 at all. Therefore the said judgment is also not helpful to the appellant. 16. The learned counsel then relied upon T.Hamza v. State of Kerala, 2000 S.C.C. (Crl.) 216. In that case, the prosecution party on receipt of information that the accused was selling brown sugar went to the scene of occurrence, caused a search on the body of the accused and recovered contraband weighing 1750 ml. gms. While dealing with the said case, by applying the ruling of the Honourable Supreme Court reported in State of Punjab v. Baldev Singh, 1999 S.C.C (Crl.) 1080, their Lordships were pleased to hold that admittedly compliance of Sec.50 was not carried out before causing the search on the body of the accused and therefore the proceedings of the prosecution got vitiated. The learned counsel would point out that even in that case when the police party approached the accused, he attempted to escape, but was apprehended, that it was then that the accused was questioned by P.W.1 and he answered that he was having brown sugar, that thereafter, the accused took out the bags and handed over to P.W.1 and only thereafter the accused was asked as to whether the presence of a Gazetted Officer was required, he answered in negative. It is significant to note that in that case, the recovery was from the body of the accused as compared to the case on hand where the contraband was kept in the premises in the shelf of one of the rooms. Therefore, there is vast difference in the facts involved in the judgment referred to above and the case on hand. There is therefore no scope to apply the said judgment to the facts of this case. 17. The learned counsel referred to certain other circumstances to show that the compliance of Sec.50 was required in this case. He would say that the version of P.W.5 and P.W.3 that an offer was made in compliance with Sec.50 is not acceptable since the said versions have not been corroborated by P.Ws.1 and 2. Though P.W.1 has referred to Ex.P-1 namely the offer made to the appellant in compliance with Sec.50 of the Act, the learned counsel would contend that Ex.P-1 was inadmissible in evidence by virtue of Sec.162, Crl.P.C. and therefore the same cannot be relied upon. Inasmuch as I have held that Sec.50 itself is not attracted to the case on hand, the above submission of the learned counsel also does not merit any consideration. 18. Next contention of the learned counsel for the appellant was that the same officer who caused the search having conducted the investigation the same would vitiate the whole proceedings especially where there were no independent witnesses. The learned counsel would contend that when P.W.6 who was also an empowered officer was very much available, there was no reason why P.W.5 should proceed with the investigation. The learned counsel relied upon John Kennedy and Abdul Khader v. Ramalingam, (1999)2 L.W. (Crl.) 762, a judgment of the learned Judge of this Honourable Court where His Lordship though referred to a similar contention raised in that case did not rest his conclusion on that point. The learned counsel relied upon John Kennedy and Abdul Khader v. Ramalingam, (1999)2 L.W. (Crl.) 762, a judgment of the learned Judge of this Honourable Court where His Lordship though referred to a similar contention raised in that case did not rest his conclusion on that point. The learned Judge was pleased to set aside the conviction on the sole ground of non-examination of independent witnesses which has not properly considered by the trial Court. Therefore, the said judgment has no application to the facts of this case. 19. The learned counsel relied upon Thalavoi v. State represented by Inspector of Police, Cheranmahadevi P.S., 1995 M.L.J. (Crl.) 410, a judgment of the learned Judge of this Honourable Court in support of his submission that the investigation carried on by P.W.5 who was the complainant himself would vitiate the prosecution proceedings. In my opinion, the said judgment cannot be applied to the case on hand inasmuch as the said Judgment arose out of a regular criminal case when compared to the case arising under the provisions of the N.D.P.S. Act. As contended by the learned Public Prosecutor, the Honourable Supreme Court in the Judgment reported in State of Punjab v. Balbir Singh, 1994 S.C.C. (Crl.) 634: (1994)3 S.C.C. 299 , in paragraph 5 was pleased to observe as under: ".....but when a Police Officer carrying on the investigation including search, seizure or arrest empowered under the provisions of the Crl.P.C. comes across a person being in possession of the narcotic drugs or psychotropic substances, then two aspects will arise. If he happens to be one of those empowered officers under the NDPS Act also then he must follow thereafter the provisions of the NDPS Act and continue the investigations as provided thereunder. If on the other hand, he is not empowered then the obvious thing he should do is that he must inform the empowered officer under the NDPS Act who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act." 20. Though the learned counsel for the appellant would contend that the said observation of the Honourable Supreme Court cannot be applied for the said proposition inasmuch as the said issue was not really canvassed before it, I am unable to accept the said submission of the learned counsel. Though the learned counsel for the appellant would contend that the said observation of the Honourable Supreme Court cannot be applied for the said proposition inasmuch as the said issue was not really canvassed before it, I am unable to accept the said submission of the learned counsel. The judgment rendered in State of Punjab v. Balbir Singh, 1994 S.C.C. (Crl.) 634, arose directly under the provisions of the NDPS Act and while considering the various provisions of the NDPS Act vis-a-vis, the provisions of the Code of Criminal Procedure, their Lordships were pleased to rule that an investigation carried on by an empowered officer who caused the search, seizure an arrest was proper. Further in the Judgment reported in Gopal Gani Ram and others v. Superintendent of Customs and Central Excise, C.T.U., Tiruchirapalli, 1999 M.L.J. (Crl.) 387, the learned Judge of this Honourable Court following the Honourable Supreme Court reported in 1994 S.C.C. (Crl.) 634, held that under the provisions of the NDPS Act, the officer who is empowered to conduct search is also empowered to make further investigation and complete the investigation in accordance with law and therefore the fact that the complainant himself conducted the investigation examined the witnesses would not vitiate either the trial or investigation or the conviction. The Judgment reported in 1999 M.L.J. (Crl.) 387 being one rendered in a case which arose under the NDPS Act itself, as against the judgment rendered in 1995 M.L.J. (Crl.) 410, I prefer to follow the ratio of the former to that of the later. 21. The learned counsel then referred to Saiyad Mohd.Saiyad Umar Saiyad and others v. State of Gujarat, 1995 S.C.C. (Crl.) 564: 1995 Crl.L.J. 2662, for the prevention that the reliance placed by the learned Public Prosecutor on Sec.114(e) of the Indian Evidence Act will have no application in respect of a case arising under the provisions of the NDPS Act. In the judgment of the Honourable Supreme Court, in paragraph 7, while dealing with the object of Sec.50 of the NDPS Act, their Lordships were pleased to hold that having regard to the language employed in Sec.50 of the Act, there is no scope for drawing any presumption under Sec.114(e) of the Indian Evidence Act. In the judgment of the Honourable Supreme Court, in paragraph 7, while dealing with the object of Sec.50 of the NDPS Act, their Lordships were pleased to hold that having regard to the language employed in Sec.50 of the Act, there is no scope for drawing any presumption under Sec.114(e) of the Indian Evidence Act. Their Lordships were pleased to hold that there is no room for presumption because the possession of illicit articles under the NDPS Act has to be satisfactorily established before the Court and that the fact of seizure thereof after a search has to be proved. Their Lordships considered the question in the context of the relevancy, the testimony of the officer conducting the search that he informed the person to be searched that he was entitled to demand that the search to be carried out in the presence of a Gazetted Office or a Magistrate and that the person had not chosen to demand so. Inasmuch the said conclusion of the Honourable Supreme Court was based on the application of Sec.50 of the NDPS Act and inasmuch as, as held by me earlier in the case on hand, Sec.50 was not attracted as the contraband was not seized from the person, but from the premises, the said judgment is also not helpful to the petitioner. Moreover, the reliance placed on Sec.114(e) of the Evidence Act, by the learned Public Prosecutor was to show that when the entire material including the reports under Secs.42(2) and 57 were placed before the Magistrate on 15.10.1995 itself, there is no scope to doubt the action of the complainant in regard to the forwarding of these reports to his immediate superior. In that context, the application of Sec.114(e) being very relevant, I reject the contention of the learned counsel for the appellant on this aspect. 22. The learned counsel for the appellant contended that when Sec.42(2) of the NDPS Act stipulates that the report under that provision should be forwarded forthwith, the word ‘forthwith’ would mean ‘immediate’ and that it cannot mean ‘as soon as may be’. The contention is on the footing that as admittedly the report under Sec.42(2) Ex.P-3 having reached the immediate superior along with the 57 report only on 16.10.1995 it cannot be held that the provisions of Sec.42(2) was strictly complied with by P.W.5. The contention is on the footing that as admittedly the report under Sec.42(2) Ex.P-3 having reached the immediate superior along with the 57 report only on 16.10.1995 it cannot be held that the provisions of Sec.42(2) was strictly complied with by P.W.5. The learned counsel therefore contended that here was a violation of Sec.42(2) of the Act. In his context the learned counsel relied upon Abdul Rashid Ibrahim Manduri v. State of Gujarat, 2000 S.C.C. (Crl.) 496, to contend that what applied to Sec.50 in the event of its noncompliance would equally apply to the case of non-compliance of Sec.42 as well. While dealing with the said contention, we have to bear in mind that the F.I.R. as well as the properties along with the documents were placed before the Magistrate on 15.10.1995 as could be seen from the initials of the Magistrate in his own hand writing in green ink contained in the papers presented before him. Therefore when Ex.P-3 was also a part of the document presented before the Magistrate on 15.10.1995 itself, there could be very little doubt as to whether the report under Sec.42(2) could not have been sent immediately on receipt of the information. Therefore, I am unable to conclude that merely because Ex.P-3 was received by the immediate superior on 16.10.1995 along with the 57 report Ex.P-6, the report under Sec.42(2) could not have been sent forthwith. We are not concerned with the receipt of the report sent under Sec.42(2); we are concerned with the question as to when the report under Sec.42(2) was sent by the Officer who received the information to his immediate official superior. When by virtue of the records placed before the Magistrate, it can be concluded that the report was sent well before that date, one can come to a safe conclusion that P.W.5 sent Ex.P-3, dated 14.10.1995 on that very date itself and since 15.10.1995 was a Sunday, the receipt of Ex.P-3 on 16.10.1995 by the immediate superior was quite acceptable and on that score, the action of P.W.5 in regard to the compliance of 42(2) cannot be doubted. 23. The learned counsel would then refer to Mohinder Kumar v. The State of Panaji, Goa, 1995 Crl.L.J. 2074, for the proposition that noncompliance of proviso to Sec.42(1) would vitiate the proceedings. 23. The learned counsel would then refer to Mohinder Kumar v. The State of Panaji, Goa, 1995 Crl.L.J. 2074, for the proposition that noncompliance of proviso to Sec.42(1) would vitiate the proceedings. Inasmuch as 1 have held that proviso to Sec.42(1) does not get attracted to the facts of this case as the search was carried on well before the sun set, the said judgment has no application here. The learned counsel pointed out that there was no other contemporaneous record including Sec.57 report to show that there was a compliance of Sec.50 of the Act. The learned counsel would further contend that when very many independent persons were available near the scene of occurrence and when P.W.5 did not take any steps to call the independent witnesses, that itself would vitiate the whole proceedings. The learned counsel would state that the stand of P.Ws.3 and 5 that the independent witnesses refused to act as eye witnesses cannot be believed. The various above circumstances will have no relevance to the case on hand inasmuch as, as held by me earlier that the whole search and seizure were from the premises in question which was in the custody of the appellant at the relevant point of time and in fact it was the appellant who brought to the notice of the prosecution party about the presence of the contraband in the premises in question. In such circumstances, the various above circumstances will not in any way vitiate the case of the prosecution. As against the submission of the learned Public Prosecutor in relying upon State by Public Prosecutor v. Devarajan and Maruthakonar, 1990 L.W. (Crl.) 213, the learned counsel contended that the learned Judge relied upon the judgment of the Honourable Supreme Court reported in State of Uttar Pradesh v. Boota Singh and others, 1979 M.L.J. (Crl.) 290, which related to a case of specimen signatures and therefore the said judgment will have no application to the facts of this case. The learned counsel would contend that by virtue of the application of Sec.162, Crl.P.C., there being a total and unqualified ban in relying upon a statement like that of Ex.P-1 as is stated to have been obtained from the appellant. The learned counsel would contend that by virtue of the application of Sec.162, Crl.P.C., there being a total and unqualified ban in relying upon a statement like that of Ex.P-1 as is stated to have been obtained from the appellant. In the case on hand, inasmuch as the search and seizure were a result of the search conducted in the premises in question and having held that Sec.50 will have no application to the case on hand, the said submission of the learned counsel also does not merit any consideration. 24. The learned Public Prosecutor on the other hand by relying upon State of Punjab v. Balbir Singh, 1999 S.C.C. (Crl.) 1080 contended that since there was no search on the person and the appellant voluntarily brought the stainless steel from the shelf, Sec.50 was never attracted to the facts of the case. In paragraph 12 and 57(1) of the judgment reported in 1999 S.C.C. (Crl.) 1080, the Honourable Supreme Court has clearly held that Sec.50 would come into play in the case of search of a person as distinguishable from the search of a premises. Therefore in the case on hand, the search having been made only in the premises, namely D.No.18, Ashok Nagar, Karumandapam, Trichy, and the contraband was seized from the said premises, Sec.50 has no application at all. 25. As regards the contention of the learned counsel based on Secs.52, 52(A) and 55 of the Act, the contention is that the said procedure prescribed under the said provisions have not been complied with. It was therefore contended that in the absence of compliance of the said provisions and when there is no evidence to show how the seized contraband were dealt with for 11 days i.e., between 15.10.1995 and the date on which it was received by the Laboratory which was on 26.10.1995, the said circumstances would vitiate the proceedings. As against the said submission, the learned Public Prosecutor would contend that the materials along with other documents were presented before the Magistrate on 15.10.1995 itself as disclosed in the file and as per the evidence of P.W.5 as well as Ex.P-2. As against the said submission, the learned Public Prosecutor would contend that the materials along with other documents were presented before the Magistrate on 15.10.1995 itself as disclosed in the file and as per the evidence of P.W.5 as well as Ex.P-2. The learned Public Prosecutor would therefore contend that by virtue of the dictum of the Honourable Supreme Court reported in Karnail Singh v. State of Rajasthan, (2000)7 S.C.C. 632 and 1999 M.L.J. (Crl.) 387, there could be no violation of Sec.52(A) read with 55 of the Act. A reading of Sec.52(3) of the Act discloses that every person arrested and article sized under Sec.42 of the Act should be forwarded without unnecessary delay to (a) the officer incharge of the nearest police station or (b) the Officer empowered under Sec.53. Sec.52(A) contemplates the disposal of the seized narcotic drugs and psychotropic substances in view of its hazardous nature, and Sec.53 provides for empowering certain officers of certain departments with powers of an officer incharge of a police station. Sec.55 provides for the manner in which the officer incharge of a police station should take charge and keep in safe custody pending orders of the Magistrate of all the articles seized under the Act. A combined reading of the above provisions would show that there is a distinction between any other officer seizing contraband article or arresting a person found in possession of such article when compared to an officer empowered under Sec.53 of the Act. It was in this context, their Lordships of the Honourable Supreme Court in paragraph 12 of the judgment reported in Karnail Singh v. State of Rajasthan, (2000)7 S.C.C. 632 were pleased to observe as under: "With the application of Sec.51 read with Secs.52 and 53 of the Act, the officer required to affix the seal etc., under Sec.55 of the Act, would be "the officer in charge of the nearest police station" as distinguishable from an officer in charge of police station empowered under Sec.53 of the Act. If resort is bad to the procedure prescribed under Sub-sec.(3)(a) of Sec.52, the applicability of Sec.55 of the Act would be attracted but if the arrested person and the seized articles are forwarded under Clause (b) of Sub-sec.(3) of Sec.52 of the Act to the officer empowered under Sec.53 of the Act, the compliance of Sec.55 cannot be insisted upon. If resort is bad to the procedure prescribed under Sub-sec.(3)(a) of Sec.52, the applicability of Sec.55 of the Act would be attracted but if the arrested person and the seized articles are forwarded under Clause (b) of Sub-sec.(3) of Sec.52 of the Act to the officer empowered under Sec.53 of the Act, the compliance of Sec.55 cannot be insisted upon. The distinction between the officer in charge of the nearest Police Station and the officer empowered under Sec.53 of the Act is distinct and clear. The distinction is apparently based upon a reasonable object, because as in the case the person and the seized articles are referred to the "officer in charge of nearest police station", a distinct agency, then the "Officers contemplated under Sec.53" of the Act comes into the picture which requires the taking of sufficient safeguards to protect the seized property in the interests of the arrested persons. The distinction is also evident from Sec.52-A(2) of the Act. Keeping in view the multifarious activities and the duties cast upon the officer in charge of the police station under the Code of Criminal Procedure and he being apparently busy with the duties under the Code, the officers mentioned in Sec.53 of the Act have been mandated to take action for disposal of the seized narcotic drugs and psychotropic substances by filing an application which, when filed, has to be allowed by the Magistrate as soon as may be. We are of the opinion that in the present case the procedure prescribed under Sec.49 read with Sec.43 was attracted, which, on facts, has been found to be followed." [Italics supplied] 26. The contention in that case was there was violation of Sec.55 of the Act and therefore the conviction should be set aside. It was in that context, the Honourable Supreme Court was pleased to clarify the position relating to application of Sec.55 of the Act in respect of a case as distinguishable between officer in charge of a nearest police station as against an officer empowered under Sec.53 of the Act. In the case on hand as the empowered officer himself having conducted the search and seizure, the alleged violation, as contended by the learned counsel for the appellant, of Sec.52(3) read with Sec.55 cannot be applied. The said contention of the learned counsel also fails. In the case on hand as the empowered officer himself having conducted the search and seizure, the alleged violation, as contended by the learned counsel for the appellant, of Sec.52(3) read with Sec.55 cannot be applied. The said contention of the learned counsel also fails. However having regard to the fact that the appellant is a lady, the sentence imposed in the event of appellant failing to pay the fine of Rs.one lakh is reduced to 3 months instead of one year. 27. Having regard to my above conclusions on the various contentions raised on behalf of the appellant found to be unsustainable, the appeal fails and the same is dismissed.