JUDGMENT: Criminal Appeal No.643 of 1997 has been preferred by A-1 and A-2, Criminal Appeal No.644 of 1997 has been preferred by A-5 and A-6, while Criminal Appeal No.890 of 1997 has been preferred by A-3 and A-4. 2. The above appeals have been preferred against the common judgment of the Special Court under the Narcotic Drugs and Psychotropic Substances Act hereinafter called as ‘the Act’, Madras in C.C.No.186 of 1994 dated 31.7.1997 convicting A-1 and A-2 under Sec.8(c) read with Sec.21 of the Act and A-2 to A-6 under Sec.8(c) read with Sec.21 and also under Sec.29 of the Act and sentenced them to undergo ten years rigorous imprisonment apart from imposing a fine of Rs.1,00,000 and in default of payment of fine to under rigorous imprisonment for further period of one more year. 3. The case of the prosecution was that on 2.9.1994 around 11.30 a.m., based on intelligence report gathered by P.W.1 to the effect the A-1 residing at Door No.26B Anna Street, Madhavaram, Chennai was in possession of contraband Heroin, that he was attempting to sell the said contraband to others, that after getting necessary permission from his superiors, P.W.1 proceeded along with certain other officials 1o the residence of A-1 and made a surveillance of his residence, that around 3.00 p.m., A-1 to A-3 came out of the residence of A-1 and after meeting A-4 to A-6 near the residence of A1, they proceeded in two autorickshaws, that when A1 came out of his house, he was found to be in possession of a brown colour packet in his hand that when P.W.1 along with his party intercepted the autorickshaws and after introducing themselves to the persons seated in the autorickshaws that they belong to NIB party, and that they wanted to search the accused. It is claimed that for that purpose, they sought the consent of the drivers of the autorickshaws to act as witnesses to the search to be conducted on the accused, that the accused were informed about their right to get themselves examined in the presence of either a Magistrate or a Gazetted Officer, that on the accused expressing their willingness to get themselves searched by P.W.1 himself, when they were enquired the first accused handed over the packet kept in his possession to P.W.1 and informed that the said packet contained Heroin. It is stated that after ascertaining that the powder contained in the said packet was Heroin, when the packet was weighed, it was found that it contained 110 gms. of Heroin, that A-5 handed over American dollars to the value of $1600 from his pant packet that he also informed that he was carrying the American dollars to Egmore with a view to convert the dollars into cash in order to pay a sum of Rs.15,000 towards the value of 110 gms. of Heroin. 4. It is also stated that on further enquiries with A-1 as to whether he was in possession of any more quantities of Heroin, A-1 informed that he was having another 250 ml gms of Heroin in his house for samples and that he also agreed to hand over the said samples. The further case of the prosecution was that necessary Mahazar was prepared by P.W.9, that the contraband from A-1 and the American dollars from A-5 were seized by P.W.1. It is also claimed that in Ex.P-2 mahazar, all the accused, auto drivers, P.W.9 and P.W.1 affixed their signatures. It is further stated that while A-2 to A-6 were taken to the office of the N.I.B., P.W.1 along with A-1, two autorickshaw drivers and other officers proceeded to the house of A1 situated at Door No.26-B, Anna Street, Chennai, that at the residence. A-1 went into his house and brought one German Dictionary wherein a sample packet was concealed which also contained substance in brown colour and when it was tested, it was proved to be Heroin. P.W.1 claimed that the German Dictionary and the Heroin Powder was seized by him under Ex.P-3 Mahazar. It is also claimed that Ex.P-3 Mahazar was also signed by the witnesses as well as A-1. It is the case of the prosecution that the weight of the Heroin contained in the said small packet was approximately taken as 250 ml. gms. It is also stated that thereafter A1 was taken to the office of the N.I.B. while the auto drivers were sent away from A-1’s house. 5. Subsequently it is disclosed that the accused were arrested on 3.9.1994 and were produced before the Additional Chief Metropolitan Magistrate, Chennai in the afternoon for remand under Ex.P-4 and as per the orders of the Magistrate, the accused were sent to Central Jail. 5. Subsequently it is disclosed that the accused were arrested on 3.9.1994 and were produced before the Additional Chief Metropolitan Magistrate, Chennai in the afternoon for remand under Ex.P-4 and as per the orders of the Magistrate, the accused were sent to Central Jail. Ex.P-5 was started to be the report under Sec.57 of the Act. It is also born out on record that since proper weighing scale was not available, the entire contraband of 110 gms. and the other pocket containing Heroin taken from the German Dictionary were sent to the Laboratory as sample for analysis purpose. 6. In respect of the above said search, seizure and arrest, charge sheet was laid against accused 1 to 6 who are the appellants in the above three appeals by the respondent. As many as 11 witnesses were examined on the side of the prosecution and Exs.P-1 to P-26 were marked apart from 5 material objects. Based on the evidence placed before the Special Court, the Special Court came to the conclusion that the appellants were guilty of the charge levelled against them and accordingly they were convicted under Sec.8(c) read with Sec.21 of the Act as well as Sec.29 of the Act and sentenced them to undergo rigorous imprisonment for a period of ten years apart from imposing a fine of Rs.1,00,000 and in default of payment of fine, to undergo further rigorous imprisonment for one more year. Aggrieved against the said conviction and sentence, the appellants have come forward with these appeals. 7. The learned counsel appearing for the appellants in C.A.No.643 of 1997, namely the accused 1 and 2, after pointing out certain discrepancies in the evidence of P.W.1, P.W.2 and certain other exhibits, contended that in the case on hand, the prosecution has failed to follow the various procedures prescribed under the Act. 7. The learned counsel appearing for the appellants in C.A.No.643 of 1997, namely the accused 1 and 2, after pointing out certain discrepancies in the evidence of P.W.1, P.W.2 and certain other exhibits, contended that in the case on hand, the prosecution has failed to follow the various procedures prescribed under the Act. The learned counsel would contend that the case of the prosecution should fail for the following lacunas, viz., (i) that there was non-compliance of Sec.52(A)of the Act; (ii) that there was violation of the provisions contained under Sec.55 of the Act; (iii) that in the matter of handling the seized goods, there was a serious flaw and it is not known how the seized contraband was dealt with between 3.9.1994 and 28.9.1994; (iv) that there was violation in respect of compliance of Sec.42 of the Act; (v) that the statements of the accused cannot be relied upon inasmuch as the accused were illegally kept in the office of the respondent, and (vi) that there was violation of Sec.50 of the Act. 8. The learned counsel would list out the following discrepancies to contend that every face of procedure prescribed under the Act was not complied with. 8. The learned counsel would list out the following discrepancies to contend that every face of procedure prescribed under the Act was not complied with. They are: (i) that the Officer who effected the search did not use his personal seal, but only used the Office seal which would provide scope for manipulation by anyone at any point of time; (ii) that there is no satisfactory explanation as to how the seized contraband was handled between 3.9.1994 and 28.9.1994, and (iii) that after the seizure was made on 2.9.1994, the accused were produced in Court only on 3.9.1994 at 5.30 p.m. which was devised with a view to manipulate the things and admittedly no sample was taken as provided under Sec.55 of the Act; (iv) that the Notification which prescribes the manner in which sample was taken was not complied with; (v) that a reading of Secs.52, 53 and 55 would show that prior to the procedure to be followed under Sec.55, the procedure under Secs.52 and 53 will have to be followed and that the Officer who seized the contraband did not follow the procedure prescribed in the matter of taking samples as provided under the standing instructions 1/88 and 1/89 which should be considered as a statutory prescription; (vi) that there was non-compliance of the mandatory provisions contained in Sec.50 of the Act in respect of the search and seizure relating to the contraband from the German Dictionary weighing 250 gms., the report of the Chemical Examiner disclose that what was contained in the packet claimed to have weighted about 250 ml.gms. was proved to be only 0.060 ml. was proved to be only 0.060 ml. gms and the difference in the weighment being vast and also that there was no explanation in respect of the said discrepancy; (vii) that no reason to why P. W. 1 did not take weighing machine along with him, when he went for the purpose of making an enquiry at the resident of A-1; No independent witness was associated in the search and seizure made at the residence of A-1 in respect of seizure of alleged 250 ml.gms except the auto drivers which was not permissible, and (viii) that in the wake of the admission of P.W.1 that he did not verify as to whether at all A-1 was a resident of the premises in question and cumulative effect of all the above factors according to the learned counsel would go to show that the recovery was false and not established. 9. The learned counsel contended that there was non-compliance of Sec.42(1) of the Act consequent upon which there was also non-compliance of Sec.42(2) of the Act as well. According to the learned counsel as per the evidence of P.W.1, what was contained in Ex.P-1 was not the reproduction of the information received by him, but the same was his perception of the information said to have been received. Since P.W.1 not having reduced the information received by him into writing in its original form, Ex.P-1 cannot be accepted as a valid one for holding that there was compliance of Sec.42(1) of the Act. The learned counsel by referring to Sec.42(2) vis-a-vis Sec.57 of the Act contended that the requirement under Sec.42 (2) could only be with reference to the information received and not the personal knowledge of the information gathered by P.W.1. 10. The learned counsel would then contend that there was a violation of Sec.50 of the Act. Addressing on that, the learned counsel contended that the evidence laid at the instance of the prosecution relating to the compliance of Sec.50 is totally unbelievable and therefore the same will have to be rejected as total non-compliance ofthe said provision. Alternatively, the learned counsel contended that the so-called compliance of Sec.50 as claimed by the prosecution was not valid in law inasmuch as the accused were not informed before search especially after specific intelligent report implicating A-1 of an offence under the Act. Alternatively, the learned counsel contended that the so-called compliance of Sec.50 as claimed by the prosecution was not valid in law inasmuch as the accused were not informed before search especially after specific intelligent report implicating A-1 of an offence under the Act. According to the learned counsel, mere offer made to the accused about the option of getting themselves examined before the Gazetted Officer or the Judicial Magistrate would not be sufficient and the concerned empowered Officer should have explained before conducting the search as to the purport of offering the said option so as to make the accused understand as to in what manner that would help the accused to get rid of any false case being foisted against the accused. The learned counsel would contend that except the evidence of P.W.1, no other evidence was available to show that there was compliance of Sec.50 of the Act. It was also pointed out that the independent witness namely auto driver P.W.6 did not refer to any offer having been made in compliance of Sec.50 of the Act. It is contended that in the absence of independent witness corroborating the version of P.W.1 relating to compliance of Sec.50, the ipso dixit statement of P.W.1 cannot be believed. 11. With record to Ex.P-2 mahazar, relating to the search and seizure, the learned counsel contended that the statement of the accused were admittedly recorded on 2.9.1994, but arrest was made only on 3.9.1994 and were produced before the Court at 5.30 p.m. on 3.9.1994, there was no explanation at all for such enormous time taken from the time of receipt of information namely at 11.30 a.m. On 2.9.1994 till the accused were arrested and produced before the Court on 3.9.1994 at 5.30 p.m. According to the learned counsel, this was an extraordinary situation involved in this case which would believe the case of the prosecution. In such circumstances, he would contend that the contents of Ex.P-2 may not be true as stated therein. The learned counsel also referred to Ex.P-5, the alleged report said to have been made in compliance of Sec.57 of the Act, where again, there was no reference to compliance of Sec.50 of the Act. The learned counsel further contended that admittedly there was non-compliance of Sec.50 of the Act with regard to the search and seizure of 250 ml.gms. The learned counsel also referred to Ex.P-5, the alleged report said to have been made in compliance of Sec.57 of the Act, where again, there was no reference to compliance of Sec.50 of the Act. The learned counsel further contended that admittedly there was non-compliance of Sec.50 of the Act with regard to the search and seizure of 250 ml.gms. of contraband said to have been made at the residence of A-1 from German Dictionary. The learned counsel contended that whatever infirmity pointed out with reference to the search and seizure of the 110 gms. of Heroin applied to the other seizure of 250 ml. gms., namely non-compliance of Sec.42(1), noncompliance of Sec.50 apart from non-weighment of the said 250 ml. gms. at the time of seizure and non-reference to compliance of Sec.50 in the seizure mahazar relating to 250 ml. gms. of contraband, non taking of samples in respect of seizure of 250 ml. gms of contraband, and there was no corroboration by independent witnesses, and that the auto drivers cannot be taken to be independent witnesses, but they were only obliging witnesses, that the officer did not take any effort to call any independent witness at the time of seizure of 250 ml. gms. even though many persons were available apart from the further fact that as per the report of the analyst Ex.P-8, the said seizure made at the resident of A-1 contained only 0.060 ml. gms. and not 250 ml.gms as stated by the prosecution. The learned counsel submitted that the difference in weight being too striking, it will have far reaching detrimental effect on the cast of the prosecution. The learned counsel also pointed out that there was violation of Secs.52(A), 53 and 55 and therefore the case of the prosecution relating to the search and seizure of 250 ml.gms, of Heroin from A-1 should also be held to be not proved. 12. In support of the various submissions made, the learned counsel, relied upon several judgments. The learned counsel also pointed out that there was violation of Secs.52(A), 53 and 55 and therefore the case of the prosecution relating to the search and seizure of 250 ml.gms, of Heroin from A-1 should also be held to be not proved. 12. In support of the various submissions made, the learned counsel, relied upon several judgments. First and foremost, the learned counsel relied upon Vasala v. State of Kerala, 1993 S.C.C. (Crl.) 1082, for the proposition that where there was inordinate delay in sending the seized article to the Magistrate and that there was no evidence worth mentioning as to whether the article seized was sealed then the investigation could be characterized as perfunctory on important aspects, and the evidence of the concerned Officers being highly discrepant and not convincing, it would be highly doubtful whether the article seized was sent to the Chemical Examiner. The learned counsel would therefore contend that even though according to the judgment of the Honourable Supreme Court trafficking in Narcotic drugs is a menace to the society, in the absence of satisfactory proof, the Court cannot convict the accused based on insufficient materials. The learned counsel then relied upon The State of Rajasthan v. Daulat Ram, A.I.R. 1980 S.C. 1314 for the proposition that where the samples were in the custody of different persons at different point of time before reaching the Public Analyst, the prosecution should show with proper evidence to rule out the possibility of the samples being chanced or tampered with. According to the learned counsel, the said ruling would show that the prosecution should prove the said position affirmatively with proper evidence right from the time of seizure till it was produced before the Court that the property was handled with utmost care and caution to rule out the possibility of tampering with actual materials seized. The learned counsel then relied upon Sarjudas v. State of Gujarat, J.T. (1999)8 S.C. 118 with particular reference to paragraph 7 for the proposition that unlike the other cases where a presumption could be drawn under Sec.114 of the Indian Evidence Act, in respect of cases falling under the N.D.P.S. Act, there is no rule for such presumption inasmuch as the possession of illicit articles under the Act has to be satisfactorily established before the Court. 13. 13. The learned counsel relied upon V.Kantilal Jain v. The Assistant Collector and Civil Inteligence Unit, Madurai, 1995 M.L.J. (Crl.) 298 and contended that the inordinate time taken from the time of seizure which took place at 3.30 p.m. on 2.9.1994 till the arrest and production of the accused before the Magistrate at 5.30 p.m. on 3.9.1994, the case put forward by the prosecution cannot be believed. The learned counsel would contend that as held by the learned Judge in the said judgment by virtue of the time lag (i.e.) between 3.30 p.m. on 2.9.1994 and at 5.30 p.m. on 3.9.1994, the prosecution was planning and scheming to achieve certain purposes contrary to the real facts. The learned counsel relied upon Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000 S.C.C. (Crl.) 496: (2000)1 Crimes 187 for the proposition that the failure to reduce to writing the exact information in compliance of Sec.42 of the Act, in the event of causing prejudice to the accused, would vitiate the case of the prosecution. The learned counsel would point out that in the said judgment, the Honourable Supreme Court has construed the manner in which the proposition laid down in State of Punjab v. Balbir Singh, 1994 S.C.C. (Crl.) 634 and State of Punjab v. Balbir Singh, (1999) S.C.C. (Crl.) 1080. should be applied. 14. The learned counsel relied upon V.Kesavan v. The Assistant Collector of Customs, Madras, 1986 T.N.L.J. 137, in support of his submission about the delayed manner in which the contraband was handled between 2.9.1994 after the seizure till it was ultimately sent for Chemical examination on 28.9.1994 which in the absence of sufficient acceptable explanation would show, that in between the said period, the contraband was not kept in safe custody, and that there was every chance for the prosecution to tamper with contents of the contraband seized. The next judgment relied upon by the learned counsel was the one reported in Pandurang Dnyandeo Hatkar and another v. State of Maharashtra, 1994 S.C.C. (Crl.) 32. 15. The learned counsel then referred to T.Hamza v. State of Kerala, 2000 S.C.C. (Crl.) 216 and contended that the facts involved in that case being identical to the one involved in the case on hand, it cannot be said that the so-called compliance of Sec.50 of the Act was technical. 15. The learned counsel then referred to T.Hamza v. State of Kerala, 2000 S.C.C. (Crl.) 216 and contended that the facts involved in that case being identical to the one involved in the case on hand, it cannot be said that the so-called compliance of Sec.50 of the Act was technical. The learned counsel contended that the moment P.W.1 along with the party stopped the autorickshaw as claimed by him, should have first and foremost offered the option of carrying out the search and seizure in the presence of Gazetted Officer or a Magistrate in its strict sense and the failure to carry out the said exercise in the said manner would vitiate the proceedings especially in a case where P.W.1 is stated to have acted based on prior information. The learned counsel then referred to State of Punjab v. Baldev Singh, 1999 S.C.C. (Crl.) 1080, the Constitutional Bench judgment of the Honourable Supreme Court wherein at paragraph 25 of the said judgment, the importance of compliance of Sec.50 has been highlighted which would show that the so-called offer made to the accused based on Sec.50 of the Act should have been corroborated by independent witnesses and in the absence of such acceptable evidence, going by the mere ipsi dixit of P.W.1’s version, it cannot be concluded that the prosecution complied with the mandatory requirement of Sec.50. The learned counsel then relied upon Koluttumottil Razak v. State of Kerala, 2000 S.C.C. (Crl.) 829, in support of his contention that in the absence of any independent witness corporating the version of P.W.1, no reliance can be placed upon the evidence of P.W.1, with reference to the compliance of Sec.50 of the Act. The learned counsel then referred to Kamleshkumar Ishwardas Patel v. Union of India and others, 1995 S.C.C. (Crl.) 643, in support of his submission that the striking variation in the weight with regard to the second seizure made at the residence of A-1, would vitiate the case of the prosecution. The learned counsel then referred to Kamleshkumar Ishwardas Patel v. Union of India and others, 1995 S.C.C. (Crl.) 643, in support of his submission that the striking variation in the weight with regard to the second seizure made at the residence of A-1, would vitiate the case of the prosecution. The learned counsel relied upon State of Punjab v. Balbir Singh, 1994 S.C.C. (Crl.) 634 in support of his submission that when a benefit or safeguard is provided under the Act and when the prosecution want to take shelter on the ground that the benefit was offered and that the accused waived to avail the opportunity provided under the Act, it was for the prosecution to prove beyond doubt that the accused waived his right knowing fully well about the purport and intendment of the right that had been provided under such a beneficial provision and if waiving the exercise of such a known right had been made, then only it could be held that the accused expressed his willingness to waive the right conferred upon him under the statute. In other words, the learned counsel contended that unless the waiver was intentionally made in respect of the waiving of a known right, it cannot be held that be a mere formal offer as stated to have been made by the prosecution in compliance of Sec.50 of the Act it would be sufficient to hold that the prosecution complied with Sec.50 of the Act. To put it differently, the learned counsel contended that one must have full knowledge of the benefit available under a particular provision available to the accused to safeguard himself against any false case being foisted against him and without being aware of the said provision in its full amplitude if the waiver had been made, there was no scope to hold that the legal requirement was complied with. In that context, the learned counsel also relied upon M/s.Motilal Padampat Sugar Mills Co. (P) Ltd. v. State of Uttar Pradesh and others, A.I.R. 1979 S.C. 621, paragraph 6, Associated Hotels of India Ltd., Delhi v. S.B.Sardar Ranjit Singh, A.I.R. 1968 S.C. 933 (Head Note B) and Provash Chandra Dalui and another v. Biswanath Banerjee and another, A.I.R. 1989 S.C. 1834 (Head Note). 16. (P) Ltd. v. State of Uttar Pradesh and others, A.I.R. 1979 S.C. 621, paragraph 6, Associated Hotels of India Ltd., Delhi v. S.B.Sardar Ranjit Singh, A.I.R. 1968 S.C. 933 (Head Note B) and Provash Chandra Dalui and another v. Biswanath Banerjee and another, A.I.R. 1989 S.C. 1834 (Head Note). 16. The learned counsel relied upon Usman Haidarkhan Shaikh v. The State of Maharashtra, 1991 Crl.L.J. 232, which is a Division Bench judgment of the Bombay High Court in support of his submission that the version of the so-called independent witnesses namely, the autorickshaw drivers in respect the subsequent seizure made at the resident of A-1 namely 250 ml.gms. of contraband can only be treated as part of the raiding party and as such no reliance can be placed on their version. The learned counsel also relied upon the Division Bench judgment of Bombay High Court reported in Usman Haidarkhan Shaikh v. The State of Maharashtra, 1991 Crl.L.J. 232 and contended that the information which was reduced to writing should be given to the accused before the offer as contemplated under Sec.50 of the Act as claimed to have been made by the prosecution. The learned counsel by relying upon State of Punjab v. Baldev Singh, 1999 S.C.C. (Crl.) 1080, with particular reference to paragraphs 26, 27, 28 of the said judgment contended that compliance of Sec.50 of the Act are to be observed scrupulously. The learned counsel also referred to paragraphs 45 to 47 to show how the Honourable Supreme Court was pleased to explain the ratio of the judgment tendered in the case reported in Pooran Mal v. Director of Inspection (Investigation), (1974)1 S.C.C. 345 . 17. The learned counsel for the appellants appearing in C.A.Nos.644 and 890 of 1997 while adopting the arguments of the learned counsel appearing for the appellants in C.A.No.643 of 1997 contended that if once the conviction and sentence imposed against A-1 is not established on that sole ground, the appellants in other cases should also be relieved and they would be entitled for acquittal. The learned counsel therefore contended that the charges levelled against the first accused being the basis for roping in the other accused 2 to 6 and when once the basis of launching the prosecution against 2 to 6 goes, then it should be held that no case has been made out as against A-2 to A-6. 18. The learned counsel therefore contended that the charges levelled against the first accused being the basis for roping in the other accused 2 to 6 and when once the basis of launching the prosecution against 2 to 6 goes, then it should be held that no case has been made out as against A-2 to A-6. 18. It was further contended that there is no evidence as to which of the other two amongst the accused 2 to 6 travelled along with A-1 in the autorickshaw, that P.W.8 has not referred to the presence of A-5 and A-6. With regard to the violations of the mandatory provisions of Secs.42 and 50, the argument addressed on behalf of A-1 was adopted by the learned counsel. The learned counsel also contended that handling of the sample in this case was not properly carried out and therefore on that sole ground, the prosecution case should be held to be vitiated. 19. As against the above submissions of the learned counsel for the appellants, the learned Public Prosecutor would contend that the uncontroverted facts are that A-1 to A-3 were seen coming out of Madhavaram House, that A-4 to A-6 joined with A-1 to A-3 and all of them proceeded in two autorickshaws. Therefore according to learned Public Prosecutor the association of all the accused was proved. The learned Public Prosecutor referred to Exs.P-1 and P-2 to note the genesis of the case and submitted that if the genesis of the case as noted therein was established, then the subsequent follow-up including the seizure of contraband as well as the American Dollars were all unassailable. He would say that the evidence of P.Ws.1 and 6 read along with Ex.P-2 would establish the case of the prosecution. It is contended that going by the evidence of P.W.1, it can be safely concluded that compliance of Sec.50 of the Act was made out. Learned Public Prosecutor also submitted that examination of the nature of search in this case indicate that A1 volunteered to hand over the packet containing contraband and therefore this is a case where there was no scope at all for carrying out any search on the person, so as to attract Sec.50 of the Act. Learned Public Prosecutor also submitted that examination of the nature of search in this case indicate that A1 volunteered to hand over the packet containing contraband and therefore this is a case where there was no scope at all for carrying out any search on the person, so as to attract Sec.50 of the Act. The learned counsel further contended that all the accused were found together at that point of time while A1 was found in possession and their statements revealed that the American dollars for the purpose of making payment in exchange of contraband Heroin. Above factors put together, according to the learned Public Prosecutor would show that the offence was made out. 20. As regards the submission based upon the evidence of P.W.2 that in the absence of the production of godown register, it was highly doubtful as to how the contraband was handled in between 3.9.1994 and 28.9.1994, the learned Public Prosecutor would contend that as between 8.9.1994 and 28.9.1994, the contraband was kept in the custody of the Court. Learned Public Prosecutor would contend that the evidence of P.W.2 is categoric to the effect that the Court asked him to keep the contraband in safe custody when he wanted to deposit into Court on 8.9.1994 and therefore, it should be construed that it was very much in the custody of the Court. It is further contended that though Sec.50 was not attracted to the facts of this case, whatever done by P.W.1 in furtherance of Sec.50 was formal. The learned counsel by relying upon the judgment of Supreme Court reported in Port Adithan v. Deputy Director, Narcotics Control Bureau, Madras, J.T. (1999)4 S.C. 540, contended that the said judgment squarely applies to the facts and circumstances of the present case, where also, no complaint was made by the appellants about the non-compliance even in their statements and in the circumstances, the evidence of P.W. 1, in regard to the compliance, of Sec.50 was sufficient, Learned Public Prosecutor also contended that based on the evidence of P.W.6, who was an independent witness it can be concluded that there was no necessity at all in this case for causing search under Sec.50 of the Act. The learned Public Prosecutor also relied upon State of U.P. v. Zakaulliah, 1998 M.L.J. (Crl.) 157 and contended that there was no necessity at all in the case on hand for compliance of Sec.50 of the Act. The learned Public Prosecutor therefore submitted that in so far as the offence relating to the seizure of 100 gms. of contraband was conclusively proved. The learned Public Prosecutor by relying upon State of U.P. v. Zakaullah, 1998 M.L.J. (Crl.) 157 submitted that as held by the Honourable Supreme Court, it cannot be held that a person having helped the police for carrying out their official duties cannot be held that he will cease to be an independent witness. 21. The learned counsel relied upon Indu Kakkar v. Haryana State Industrial Development Corporation Ltd. and another, J.T. (1988)8 S.C. 298 in support of his contention that only when a person is to be searched, he is required to be informed about his right to get examined in the presence of a Gazetted Officer or a magistrate and not otherwise. The learned Public Prosecutor would submit that in this context, the statements of the accused are very relevant, inasmuch as there was no retraction from their statements till all the documents along with the remand report and the property were placed before the Court and therefore when the retraction of the accused was belated in point of time, the same cannot be relied upon. The learned Public Prosecutor would contend that all the lapses pointed out on behalf of the appellant will not stand in the light of categoric admission of the appellants themselves in the statements given by them. 22. As regards the violation alleged with reference to Sec.42 of the Act, the learned Public Prosecutor would contend that what was contained in Ex.P-1 was only an Intelligence Report gathered and it was not based upon any information received or based on personal knowledge and therefore Sec.42(1) and (2) were not attracted to the facts of the case. The learned Public Prosecutor would further contend that in any case, it was a search conducted in a public place, in which event, it would fall within Sec.43 of the Act and in a case where Sec .43 is attracted, the compliance of Sec.42 will be of no consequence. The learned Public Prosecutor would further contend that in any case, it was a search conducted in a public place, in which event, it would fall within Sec.43 of the Act and in a case where Sec .43 is attracted, the compliance of Sec.42 will be of no consequence. The learned Public Prosecutor relied upon J.T. (2000) S.C. 1056: A.I.R. 2000 S.C. 632 in support of his submission that where the action taken is not based on his personal knowledge, the requirements of Sec.42 would not be applicable. He also relied upon Sayar Puri v. State of Rajasthan, (1998)3 Crimes 254 S.C. and contended that when the search was conducted in a public road, neither the procedure under Sec.42(2) of the act was required to be followed, nor the site plan was required to be prepared. 23. As regards the contentions or the appellants regarding violation of Sec.50 of the Act, the learned Public Prosecutor would contend that a search contemplates a discovery of a thing which is not ordinarily visible to a naked eye and in the case on hand, there was a declaration by the accused when he handed over he contraband to the police party that it contained Heroin and therefore no search was factually needed nor conducted. According to him, it was a straight case of a seizure and therefore Sec.50 did not get attracted at all. The learned Public Prosecutor relied upon Sarjudas and another v. State of Gujarat, J.T. (1999)8 S.C. 118 in support of his above submission wherein it has been held that when contraband was found kept in a bag which was handing on the Scooter in which the person was riding, that was not a case where any search was stated to have been conducted on the body of the person and applying the above said reasoning to the facts of this case, the learned Public Prosecutor submitted that Sec.50 was not at all attracted to the case on hand. On this aspect, the learned Public Prosecutor contended that all the statements of the accused recorded under Secs.53(A) and 67 of the Act were admissible in evidence inasmuch as the same were not retracted at the earliest point of time when the accused were produced before the Judicial Magistrate. On this aspect, the learned Public Prosecutor contended that all the statements of the accused recorded under Secs.53(A) and 67 of the Act were admissible in evidence inasmuch as the same were not retracted at the earliest point of time when the accused were produced before the Judicial Magistrate. The learned Public Prosecutor also referred to the Magistrate’s endorsement in Ex.P-4 remand report, which disclose that the accused were produced before him on 3.9.1994 at 5.30 p.m. and all of them were remanded till 16.9.1994 to be produced before the Special Court on that date. The learned Public Prosecutor also referred to the statement of A1 marked under Ex.P-25 which establish that the details about A-1 were true and in such circumstances, the case of the prosecution cannot be doubted. The learned Public Prosecutor relied upon Naresh J.Sukhawani v. Union of India, 1996 S.C.C. (Crl.) 76 in support of his submission that the statement of the accused recorded under Sec.67 could be safely relied upon. 24. As regards the evidence of P.W.6 auto driver, the learned Public Prosecutor relied upon the decisions of the Honourable Supreme Court reported in State of U.P. v. Zakaullah, 1998 M.L.J. (Crl.) 157 and Joseph Fernandaz v. State of Goa, (2000)2 C.C.R. 223 in support of his submission. The Honourable Supreme Court was pleased to hold that merely because a witness had obliged the police, in another case also the same would not in any way affect his independent character. 25. As regards the seizure of the contraband which was made at the house of the first accused, the learned Public Prosecutor would contend that the said act being a continuous action of the previous seizure of 110 gms, there was no necessity for an independent compliance of Sec.42 of the Act. The learned Public Prosecutor also submitted that assuming that compliance under Sec.42 was required, having regard to the confession statement which was not retracted at the earliest point of time, the same would cure the said alleged violation under Sec.42. As regards the violation of Sec.52 of the Act, the learned Public Prosecutor would contend that Sec.52 would get attracted only if the search and seizure is made by the regular police and not by the special team. According to him, if an empowered officer falling under Sec.53 of the Act carried out the search and seizure, Sec.52 will not get attracted. According to him, if an empowered officer falling under Sec.53 of the Act carried out the search and seizure, Sec.52 will not get attracted. The learned Public Prosecutor submitted that the same reasoning will hold good for the contention raised on the basis of violation of Sec.55 of the Act. As regards Sec.52(A) of the Act, the learned Public Prosecutor would contend that the said provision related to ultimate a trial and disposal of the contraband and will not apply to the case on hand. 26. According to the learned Public Prosecutor, the statutory presumption under Sec.35 read with 54 of the Act would come into play and the burden was upon the accused to show that they were not found in possession of the contraband. As regards the doubt raised relating to the manner in which the contraband was handled in between 3.9.1994 and 29.9.1994, the learned Public Prosecutor by referring to paragraph 25 of the judgment of the Court below contended that as found by the Court below, after 3.9.1994 when the contraband was placed before the Court, it was handed over to P.W.2 who kept it in the NCB godown of the prosecution party, that thereafter it was presented before the Court on 8.9.1994 along with Ex.P-15 which was given a number as A.No.3/94 by the Court and as directed the Court it was handed over back to P.W.2, who in turn under Ex.P-7 left it with the Chemical Laboratory for analysis and as could be noted from Ex.P-9, since the seal was found in tact with date, it cannot be held that there was any scope for tampering with the seized contraband as the instance of the prosecution. In this context, the learned Public Prosecutor also referred to Ex.P-2 which disclose that the seized contraband as well as the foreign dollars were properly sealed and kept in safe custody. The learned Public Prosecutor also contended that there was not even a suggestion in the evidence of any of the witnesses to the effect that what has been seized was not Heroin. He also pointed out that even in Sec.313 statement, no such averment was made. The learned Public Prosecutor however, fairly sated that it cannot be held that fool proof system was allowed in the subsequent recovery of 250 ml. gms. of Heroin from the house of A-1. 27. He also pointed out that even in Sec.313 statement, no such averment was made. The learned Public Prosecutor however, fairly sated that it cannot be held that fool proof system was allowed in the subsequent recovery of 250 ml. gms. of Heroin from the house of A-1. 27. The learned Public Prosecutor relied upon Baldev Singh v. The State of Himachal Pradesh, 1976 Crl.L.J. 758, a judgment of a single Judge of Himachal Pradesh High Court in support of his submission that where nothing was suggested in cross-examination to the prosecution witnesses, it should be presumed whatever stated earlier was acceptable and true. The learned Public Prosecutor also relied upon State of Himachal Pradesh v. Thakur Dass and etc., 1983 Crl.L.J. 1694, a judgment of yet another single Judge of Himachal Pradesh High Court for the very same propositions. The learned Public Prosecutor further submitted that going by the version of the accused as contained in their statements, that before they finalised their transaction, the contraband was tested and further at the time of seizure, it was tested with the help of a kit and in the circumstances nothing more was required to confirm that the accused were trafficking in contraband. The learned Public Prosecutor would contend that by relying upon the statement of the accused recorded under Sec.67 of the Act, the conviction could be sustained. He relied upon Bipin Shantilal Panchal v. Pruthivraj and others, (1999)1 Crimes 145 and relied upon Hem Raj v. The State of Ajmer, 1954 M.W.N. (Crl.) 136, a judgment of the Honourable Supreme Court in support of his above submission. 28. The learned counsel for the appellants in his reply submitted that there was a specific suggestion made to P.W.1 to the effect that what was seized was not Heroin and therefore barring the chemical analyst report, there is not proof that the seized article was contraband substance and viewed in that respect, when serious doubts arise as to what was seized alone was sent for chemical analysis, the case of the prosecution cannot be relied upon. The learned counsel referred to State of Rajasthan v. Daulat Ram, A.I.R. 1980 S.C. 1314 and contended that where the samples of Opium changes several hands before the reaching the Public Analyst and yet none of those in whose custody the sample remained, were examined by the prosecution to prove that while in their custody, the seals on the samples were not tampered with, the inevitable effect of the omission would be that the prosecution failed to rule out the possibility of the samples being changed or tampered with during the interregnum period in question. The learned counsel submitted that the said proposition laid by the Honourable Supreme Court was subsequently followed by the Division Bench judgment reported in Mohd. Hashim v. State, Delhi, 2000 Crl.L.J. 1510 and The State of Maharashtra v. Abdul Jaheb, 2000 Crl.L.J. 2136. According to the learned counsel, he intelligence theory now propounded by the prosecution is factually incorrect and further legally such a plea cannot be put forward. 29. According to the learned counsel a reading of Sec.42(1) would show that what was heard by the Officer itself will be an information. The learned counsel by referring to Ex.P-1, submitted that a reading of Ex.P-1 itself shows that what was gathered was only by way of an information not by way of intelligence. He also referred to the evidence of P.W.1 where P.W.1 has tacidly admitted that he received a definite information and it was not based on intelligence gathered. He also referred to the statements contained in Ex.P-2 Mahazar, the statement made in the counter-affidavit filed in Crl.M.P.No.1380 of 1994, the statement found in Ex.P-15 and also further averments of P.W.1 in his evidence, all of which go to show that the whole initiation was based on information and not on the basis of intelligence gathered. The learned counsel therefore contended that if what is contained in Ex.P-1 is not real information gathered, it cannot be stated that there was compliance of Sec.42(1) and (2) of the Act. The learned counsel therefore contended that if what is contained in Ex.P-1 is not real information gathered, it cannot be stated that there was compliance of Sec.42(1) and (2) of the Act. As regards the contention raised at the instance of the learned Public Prosecutor relating to application of Sec.43, the learned counsel by relying upon Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000)1 Crimes 187: 2000 S.C.C. (Crl.) 496, contended that when as admitted by P.W.1, he proceeded based on information, the present contention that the action would fall under Sec.43 of the act cannot be countenanced. 30. As regards the contention based on violation of Sec.50 of the Act, the learned counsel would contend that as held by the Honourable Supreme Court in judgment reported in Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000)1 Crimes 187: 2000 S.C.C. (Crl.) 496, what will apply to Sec.50, would apply to Sec.42 as well. Therefore in the absence of proper compliance of the above stated provisions, the case of the prosecution should not be accepted. In this context, the learned counsel relied upon T.Hamza v. State of Kerala, 2000 S.C.C. (Crl.) 216 and contended that the facts involved in that case were similar to the one involved in the case on hand and therefore as held by the Honourable Supreme Court, compliance of Sec.50 was fully attracted to the case on hand. In such circumstances, the learned counsel by relying upon the judgments of the Honourable Supreme Court reported in Saiyad Mohd.Saiyad Umar Saiyad and others v. State of Gujarat, 1995 S.C.C. (Crl.) 564 and K.Mohan v. State of Kerala, 2000 S.C.C. (Crl.) 1228 contended that mere oral offer would not be sufficient compliance of Sec.50 of the Act, the appellants should have been made aware of the real protection available to them and only after full understanding of the said facility available, the offer should have been rejected by the appellant in order to claim compliance of Sec.50 of the Act. The learned counsel would state that except P.W.1’s evidence and Mahazar Ex.P-2, there is no other material to show that Sec.50 was complied with. According to the learned counsel, Ex.P-2 Mahazar has got very little role to play as it was only to refresh the memory of the eye witness. The learned counsel would state that except P.W.1’s evidence and Mahazar Ex.P-2, there is no other material to show that Sec.50 was complied with. According to the learned counsel, Ex.P-2 Mahazar has got very little role to play as it was only to refresh the memory of the eye witness. By relying upon State by Public Prosecutor v. Devarajan and another, 1990 L.W. (Crl.) 215, the learned counsel contended that the witness referred to therein can only relate to an independent witness and where the version of the prosecution was not corroborated by any independent witness, it cannot be held that Sec.50 was complied with. 31. As regards the statements of the accused the learned counsel contended that accused Nos.5 and 6 were Sri Lankans, who claimed that they do not know Tamil as disclosed in Exs.P-16 and P-26 and therefore in the absence of satisfactory explanation by the prosecution, that their confessional statements were made after fully understanding the contents of the statements, the said statements cannot be relied upon. The learned counsel by referring to paragraph 7 and 9 of Ex.P-2 contended that as early in the month of October, 1994, the accused retracted from those statements and therefore the same cannot be relied upon. In any event, according to the learned counsel, the statement of A-1 will not inspire the confidence of the Court. None of the averment contained in the said statement could be verified with any material particulars, therefore on the basis of the statement contained therein, the conviction cannot be made. The learned counsel relied upon Haroom Haji Abdulla v. State of Maharashtra, 1968 S.C.C. 832 and Shankaria v. State of Rajasthan, 1978 S.C.C. 1248 in support of his above submissions. 32. After hearing the respective counsel, the questions that arise for consideration in these appeals can be formulated as under: (i) whether Sec.42 was attracted at all to the facts of this case? If so, whether there was compliance of the requirement of Sec.42? (ii) whether the compliance of Sec.50 was attracted to the facts of this case, if so whether there was proper compliance of Sec.50? (iii) whether there was any violation of Sec.52-A and Sec.55 of the Act and whether there was any scope for manipulating the seized contraband in between the period 3.9.1994 and 28.9.1994? (ii) whether the compliance of Sec.50 was attracted to the facts of this case, if so whether there was proper compliance of Sec.50? (iii) whether there was any violation of Sec.52-A and Sec.55 of the Act and whether there was any scope for manipulating the seized contraband in between the period 3.9.1994 and 28.9.1994? (iv) what would be the effect of the belated retraction of the accused relating to the search and seizure? (v) whether the statement of the accused recorded under Sec.67 of the Act can be relied upon? (vi) Whether the case of the prosecution had sufficient corroboration? while analyzing the above questions some of the features which were pointed out by either side can be referred to. Ex.P-2 is the starting point for the whole case, which according to the prosecution is ‘Intelligence Report’. The said report recorded by P.W.1 reads as under: Intelligence Report: Intelligence gathered indicates that one Mahendran, a Srilankan, residing at No.26-B Anna Theru Madhavaram, Madras-60 is in possession of Heroin, a narcotic drug and that he is trying to sell that Heroin to some other Srilankans who may be coming from Anna Nagar area. If surveillance is mounted at the above mentioned address if may be possible to trace the persons, seize the heroin and apprehend the persons involved. Submitted for orders, please. Date: 2.9.1994 Sd xxxx 2.9.1994 (G.Mohan) IO, NCB, Madras-17 Submitted to: The Superintendent, NCB, Madras-17. It was dated 2.9.1994. A perusal of Ex.P-1 shows that after gathering the said material, P.W.1 seemed to have submitted the said report to his immediate superior namely Superintendent and thereafter based on the action to be taken P.W.1 proceeded to the place or occurrence namely No.26, Anna Theru Madhavaram, Madras-60 along with the party. According to the prosecution, it is an ‘Intelligence Report’ gathered and therefore the same cannot be cons rued as a report based on any information received by P.W.1 so as to attract the compliance of Sec.42 of the Act. 33. According to the prosecution, it is an ‘Intelligence Report’ gathered and therefore the same cannot be cons rued as a report based on any information received by P.W.1 so as to attract the compliance of Sec.42 of the Act. 33. On the other hand, the learned counsel for the appellants by referring to the evidence of P.W.1 stating and and the statement contained in Ex.P2 that and the statement contained in Ex.P3 that and the stand of the prosecution in the remand application Ex.P-4 to the effect that “Based on the information that one Mahendran of Madhavaram” and the statement of P.W.1 as contained in his counter affidavit Ex.P-2 filed in Crl.M.P.No.1380 of 1994 “Based on the information that one Mahendran of Madhavaram” as well as in the petition for drawal of samples Ex.P-15 “On 2.9.1994, based on information” contended that the prosecution initiated the whole proceedings only based on information and not on the basis of Intelligence gathered as claimed by the prosecution. On the other hand, the learned Public Prosecutor referred to Ex.P-1, wherein, the caption itself mentioned “Intelligence Report” and the body of the report states that intelligence gathered indicated about the commission of the offence, that the evidence of P.W.1 as extracted above also referred to apart from his definite statement in cross-examination at the instance of A-5 and A-6 and also his explanation in re-examination and further cross-examination which are to the following effect submitted that the prosecution never attempted to convert a case proceeded on the basis of information to one of Intelligence. The learned Public Prosecutor would contend that right from the starting point, the prosecution was consistent in its stand that the whole proceedings was initiated on the basis of the Intelligence Report gathered. 34. On a perusal of Ex.P-1 and the evidence of P.W.1 disclose that the whole case was initiated based on the Intelligence Report gathered by him and not based on the information received from any particular source. 34. On a perusal of Ex.P-1 and the evidence of P.W.1 disclose that the whole case was initiated based on the Intelligence Report gathered by him and not based on the information received from any particular source. In fact of his re-examination, P.W.1 clarified that they used to gather certain particulars in the course of their performance of duties in general either from casual talks of others and also from what they gathered from other officials in the course of surveillance and when such particulars are crystallised in the form of the report, such reports would be construed only as a report based on intelligence and the same cannot be taken as based on any particular information. A reading of Ex.P-1 also shows that P.W.1 gathered certain reports through one such means which is. otherwise called as Intelligence Report. However much, the learned counsel for the appellants would seek reliance on certain words mentioned by P.W.1 in the course of his deposition where he referred to the term “tamil Matter” I am unable to hold that the initiation of the proceedings was based on any information. If really P.W.1 had received any information, it would not have deterred him from recording the same as it is not as if P.W.1 was not aware of legal formalities to be complied with. In such a case, when P.W. 1 could record particulars gathered through Intelligence nothing could have prevented him from recording as any information received through any other source. On a perusal of the evidence of P.W.1 also disclose that he was fully conscious while deposing before the Court that he initiated the proceedings only based on the Intelligence Report and not based on any information. In such circum stances, when there is vast difference between the Intelligence Report and Information Report as could be deduced from the evidence of P.W.1 and the contents of Ex.P-1 that the basic structure of the case was built upon Intelligence Report and such a case put forward by the prosecution is quite clear and acceptable, I hold that the whole initiation of the prosecution was based on Intelligence Report and not based on any information. 35. There is no prohibition under the Act that an empowered Officer cannot initiate proceedings on the basis of materials gathered other than by way of information or personal knowledge. 35. There is no prohibition under the Act that an empowered Officer cannot initiate proceedings on the basis of materials gathered other than by way of information or personal knowledge. There could be very many circumstances where an empowered officer could come across a violation of the provisions of the N.D.P.S. Act without there being any information about the same or not based on his own personal knowledge. Therefore such of those exceptional category of cases would fall out side the purview of Sec.42 of N.D.P.S Act. In this context, reliance can be placed upon the judgment of the Honourable Supreme Court reported in Karnail Singh v. State of Rajasthan, (2000)7 S.C.C. 632 . In paragraph 8 of the said judgment, the Honourable Supreme Court was pleased to observe that, “.....for attracting the applicability of Sec.42, it is necessary that the Officer empowered thereunder, before exercise of his right, has reason to believe from personal knowledge or information regarding the movement of narcotic drug or psychotropic substance. However, if the action is taken not upon his personal knowledge or information, the requirement of Sec.42 would not be applicable”. 36. In the case on hand, as found by me, the Intelligence Report need not necessarily be taken as the one based on information and the case of the prosecution that the same was not based on information, but only on the basis of materials gathered through the Intelligence and where there is every reason to believe the said case put forth by the prosecution, I hold that Sec.42 was not attracted to the case on hand When once I reach the said conclusion, the various other submissions made by the learned counsel for the appellants on the basis of non-compliance of Sec.42 should fall to the ground. 37. The next question that requires to be considered is about the compliance of Sec.50 of the Act. In so far as the application of Sec.50 is concerned, when search caused on a person of the accused, Sec.50 of the Act mandates that before causing any such search, the accused should be offered to exercise his option as to whether he would like to get himself examined either before a Magistrate or a Gazetted Officer. The said provision has been made in order to rule out the possibility of any false case being foisted against an innocent person. The said provision has been made in order to rule out the possibility of any false case being foisted against an innocent person. The Honourable Supreme Court has repeatedly held that in the case of personal search, the compliance of Sec.50 is mandatory. Their Lordships have indicted that in the event of a person opting to get himself examined before a Magistrate of a Gazetted Officer, the same would in appropriate cases enable the concerned Magistrate or Gazetted Officer to even prevent the prosecuting officials from causing an unwanted search on an innocent person. Therefore it is by now settled that whenever a personal search is made on an accused person, compliance of Sec.50 of the Act is imperative. The learned counsel for the appellants by relying upon the various decisions starting from Pandurang Dayandeo Hatkar v. State of Maharashtra, 1994 S.C.C. (Crl.) 32, 1999 S.C.C. (Crl.) 100, contended that the evidence relating to compliance of Sec.50 in the case on hand is totally unbelievable, and therefore the same is to be rejected and held that there was total non-compliance of the said provision. In any event, it was contended that the compliance said to have been made is totally invalid, inasmuch as, the accused were not informed before the search about the implications and the benefits of getting himself examined before a Magistrate or a Gazetted Officer or about the Intelligence Report gathered implicating the first accused of an offence under the provisions of the N.D.P.S. Act. The learned counsel would contend that even though A1 is stated to have handed over the packet containing Heroin, the officer concerned ought to have made known to him in detail about the availability of getting himself examined before a Gazetted Officer or a Magistrate as held by the Honourable Supreme Court in the judgment reported in Pandurang Dayandeo Hatkar v. State of Maharashtra, 1999 S.C.C. (Crl.) 32 and T.Hamza v. State of Kerala, 2000 S.C.C. (Crl.) 216. According to the learned counsel in the case on hand when the prosecution proceeded on the basis of prior information, there should have been strict compliance of Sec.50 of the Act. The learned counsel further contended that except P.W.1’s evidence, there is no other material available on record to show that Sec.50 was complied with. According to the learned counsel in the case on hand when the prosecution proceeded on the basis of prior information, there should have been strict compliance of Sec.50 of the Act. The learned counsel further contended that except P.W.1’s evidence, there is no other material available on record to show that Sec.50 was complied with. According to the learned counsel, the evidence of P.W.1 was not corroborated by the so called independent witness P.W.6 in regard to compliance of Sec.50. Therefore it was contended that as per the dictum of the Honourable Supreme Court reported in State of Punjab v. Baldev Singh, 1999 S.C.C. (Crl.) 1080, whereby when the so called compliance of Sec.50 as claimed by P.W.1 was not corroborated by the independent witness, it cannot be construed as compliance of Sec.50 at all. The learned counsel by referring to the evidence of P.Ws.3, 5, 9 and 11 stated that none of the abovesaid witnesses also referred to the compliance of Sec.50 of the Act. The learned counsel by referring to Koluttumottil Razak v. State of Kerala, 2000 S.C.C. (Crl.) 829 contended that in the absence of corroboration of evidence of P.W.1 by any other independent witness, the same cannot be believed. The learned counsel after referring to Mahazar, Ex.P-2 contended that the intelligence or the information gathered was at 11.30 a.m. On 2.9.1994, that the seizure was at 3.00 p.m. on that date, the statement of the accused were recorded on the same day, but the arrest was made only on 3.9.1994 and the accused were produced before the Magistrate on 5.30 p.m. on 3.9.1994. In the above stated circumstances, according to the learned counsel, it should be considered as an extra-ordinary situation whereunder by applying the judgment of His Lordship Mr.Justice Rangasamy, reported in V.Kantilal Jain v. The Assistant Collector and Civil Intelligence Unit, Madurai, 1995 M.L.J. (Crl.) 298, the contents of Ex.P-2 Mahazar may not be as is stated therein. Therefore according to the learned counsel, even if it referred to the compliance of Sec.50, the same should not be relied upon. The learned counsel further contended that the report under Sec.57 also does not refer to the compliances of the Act. The learned counsel contended that in any event, there was no compliance at all with regard to recovery of 250 ml.gms said to have been seized from the house of A-1. The learned counsel further contended that the report under Sec.57 also does not refer to the compliances of the Act. The learned counsel contended that in any event, there was no compliance at all with regard to recovery of 250 ml.gms said to have been seized from the house of A-1. In respect of the said seizure, the learned counsel contended that the same is vitiated, inasmuch as there was no report under Sec.42 of the Act, there was no compliance of Sec.50 of the Act, no weighment was made and the Mahazar also did not refer to the compliance of Sec.50. There again, the learned counsel would point out that no samples were taken, that no independent witness was examined though several persons were very much available, that auto drivers cannot be treated as independent witnesses as they were obliging witnesses, that the report of the analyst under Ex.P=8 disclose the contents to the extent of only 0.060 gms, while the prosecution claimed to have seized 250 ml.gms. Therefore the learned counsel contended that there was total violation of the various provisions of the Act in regard to the said seizure. 38. On the question of the right to get himself examined before the Magistrate or a Gazetted Officer, the learned counsel would contend that the stand of the prosecution that the accused waived his option to get himself examined before such authorities cannot be accepted on the basis of mere statement of the Officer concerned. The learned counsel would contend that the concept of waiver could be inferred where a person said to have waived his right had done it by international relinquishment of his known right, that for doing so, that person must have had full knowledge about the right available to him so that he can make the intelligent choice of waiving such a valuable right. In that context, the learned counsel relied upon Associated Hotels of India Ltd., Delhi v. S.B.Sardar Ranjit Singh, A.I.R. 1968 S.C. 933, M/s.Motilal Parampeat Sugar Mills Co. (P) Ltd. v. State of Uttar Pradesh and others, A.I.R. 1979 S.C. 621, Provash Chandra Dalui v. Biswanath Banerjee, A.I.R. 1989 S. C 1834, State of Punjab v. Balbir Singh, 1994 S.C.C. (Crl.) 634, Mohd Saiyad. Mohd. (P) Ltd. v. State of Uttar Pradesh and others, A.I.R. 1979 S.C. 621, Provash Chandra Dalui v. Biswanath Banerjee, A.I.R. 1989 S. C 1834, State of Punjab v. Balbir Singh, 1994 S.C.C. (Crl.) 634, Mohd Saiyad. Mohd. Saiyad Umar Saiyad v. State of Gujarat, 1995 S.C.C. (Crl.) 564 and K.Mohan v. State of Kerala, 2000 S.C.C. (Crl.) 1228 and also Usman Haydarkhan Shaikh v. The State of Maharashtra, 1991 Crl.L.J. 232, Sundil Jumar v. State Delhi, 1995 Crl.L.J. 3931 and (1996)3 C.C.C. 36 and also State of Punjab v. Baldev Singh, 1999 S.C.C. (Crl.) 1080. 39. As against of the above submission of the learned counsel for the appellants, the learned Public Prosecutor would contend that Sec.50 was not attracted at all to the case on hand. According to the learned Public Prosecutor in the case on hand, the moment, the autorickshaws were surrounded by the prosecution party, A-1 voluntarily came forward and handed over the packet containing the Heroin and therefore there was no necessity for the prosecution to cause any bodily search on any of the accused. The learned Public Prosecutor would contend that as a matter of fact, no search was carried out on the body of any of the accused. It was therefore contended that the statement of P.W.1 referring to compliance of Sec.50 was only formal and the same was not required in the facts and circumstances of the case and therefore merely because such an offer was stated to have been made at the instance of P.W.1, it need not be taken that this was a case where the compliance of Sec.50 was mandatorily required. The learned Public Prosecutor also contended that even assuming that compliance of Sec.50 was required in the case on hand, the evidence of P.W.1 and the contents of Ex.P-2 were sufficient to show that there was satisfactory compliance of Sec.50 of the Act. In that context, the learned Public Prosecutor would contend that when the accused persons did not raise any protest about non-compliance of the said provision at the earliest point of time, the present stand of the appellants with regard to non-compliance would not vitiate the proceedings. The learned Public Prosecutor relied upon Pon Adithah v. Deputy Director, Narcotics Control Bureau, Madras, J.T. (1999)4 S.C. 540. The learned Public Prosecutor contended that a perusal of Ex.P-6 with regard to the seizure of 110 gms. The learned Public Prosecutor relied upon Pon Adithah v. Deputy Director, Narcotics Control Bureau, Madras, J.T. (1999)4 S.C. 540. The learned Public Prosecutor contended that a perusal of Ex.P-6 with regard to the seizure of 110 gms. would show that there was no necessity at all for a search. The learned Public Prosecutor relied upon State of U.P. v. Zakaullah, 1998 M.L.J. (Crl.) 157, in support of his submissions. The learned Public Prosecutor relied upon (1999)1 Crimes 5 and Kalema Tumba v. State of Maharashtra and another, J.T. (1999)8 S.C. 293 in support of his submission that when the statements of the accused are silent on this aspect and when the retraction is belated, the case of the prosecution on the question of compliance of Sec.50 should be accepted in toto. 40. As regard the compliance of Sec.50, P.W.1 in his evidence stated that after requesting the accused in the presence of P.W.6 and the other Auto Rickshaw drivers before causing any search, it was offered to the; appellants as to whether they would like to get themselves examined in the presence of a Magistrate or a Gazetted Officer and that all of them in unison negatived the said offer and that immediately thereafter the first appellant handed over the packet containing the Heroin of 110 gms, and that fifth appellant handed over the 1600 American Dollars from his pant packet. The said version of P.W.1 is supported by the contents of Ex.P-2. Ex.P-2 has been signed by the accused P.W.1, P.W.6 and the other auto drivers apart from the officer who recorded Ex.P-2. P.W.6 in his evidence confirmed that Ex.P-2 was recorded then and there and that it was signed by him along with the other auto driver. In fact in his cross-examination, P.W.6 stated that before writing Ex.P-2, the Officers enquired with him and after Ex.P-2 was written it was read over to him and only thereafter, he signed the said document. P.W.6 in his evidence confirmed that Ex.P-2 was recorded then and there and that it was signed by him along with the other auto driver. In fact in his cross-examination, P.W.6 stated that before writing Ex.P-2, the Officers enquired with him and after Ex.P-2 was written it was read over to him and only thereafter, he signed the said document. In Ex.P-2, an offer was stated to have been made to the accused in compliance of Sec.50 and the same has been recorded to the following effect: From the above extracts and other evidence, it is clear that when the two Autos in which the appellants were travelling were apprehended by the prosecution party, the first appellant handed over the packet containing Heroin under M.O.1 to P.W.1 while the fifth appellant handed over the foreign money of 1600 American Dollars. 41. In the above stated circumstances, a question arise whether Sec.50 is attracted at all to the facts of the case. Inasmuch as the seized contraband Heroin was found in the possession of the first appellant, it cannot be held that Sec.50 was not attracted at all to the facts of this case, then the other question would be whether the compliance of Sec.50 is in accordance with law in this case. On this aspect as stated above, the only piece of evidence available is that P.W.1 and Ex.P-2. As far as P.W.6 is concerned, though he has not stated specifically about the offer made to the appellants, he confirmed to the extent that the contents of Ex.P-2 were recorded after enquiring him and after the contents were read over to him before getting his signatures. P.W.6 has not resiled from his position while stating the facts before the Court. It is not the case of the appellant that P.W.6 was a stock witness, what all stated is that when very many persons were available at the scene of occurrence, the prosecution party should have invited some other person from the crowd to witness the so called seizure. According to the appellants P.W.6 cannot be treated as an independent witness inasmuch as he was at the mercy of the prosecution party at that relevant point of time. According to the appellants P.W.6 cannot be treated as an independent witness inasmuch as he was at the mercy of the prosecution party at that relevant point of time. Even assuming P.W.6 was under the mercy of the prosecution party at that point of time, at the time of giving evidence before the Court when he was free to depose whatever he wanted to say, P.W.6 did not make any contrary statement that what was contained in Ex.P-2. In the above stated circumstances, it cannot be held that no offer at all was made to the appellants in compliance of Sec.50 of the Act as claimed by P.W.1. I am satisfied with the materials placed before the Court which go to show that an offer was made to the appellants in compliance of Sec.50 of the Act before causing the search on the appellants. 42. The only other question would be whether such an offer as has been made by the production party could be held to be a sufficient one. According to the learned counsel for the appellants, when a valuable right is stated to have been waived by a party, the offer of such right to the accused should have been made in such a manner that before waiving such an offer, the accused should have been aware of the valuable benefits, that would accrue from the said offer. According to the learned counsel, if the accused were not clearly informed of the benefits provided under the statute, then the mere asking cannot be considered as full compliance of the offer as contemplated under the Act. In this context, if we look into the version of P.W. 1 and the contents as found in Ex.P-2, it discloses that the accused were informed about their right to get themselves examined before a Magistrate or a Gazetted Officer. In this context, the statement of A-1, namely Ex.P-25 assumes greater significance. According to him, he has studied upto G.C.E. Advanced level at Mahajana College, Jafna, that after that he studied Cement Chemist as a professional course at K.K.S. Cement Corporation, that he worked as a Shift Chemist till 1983 December, that between 1985 and 1987, he worked as an Assembler in a Cycle Factory at Switzerland and that he came back to India in the year 1991 with an idea of going to some other foreign countries. As rightly contended by the learned Public Prosecutor, the said statement of the first appellant recorded under Sec.67 of the Act under Ex.P-5 was not retracted by the appellants when the accused were produced before the Magistrate for remand. In fact in Ex.P-4, remand report, the Magistrate has made an endorsement on 3.9.1994 at 5.30 p.m. to the following effect: 3.9.1994 5.30 p.m. All the six accused produced before me today at my residence. No complaint of ill-treatment made against the Intelligence Office (NCB) (N.C.). There is prima facie case for remand. Hence all the accused are surrendered to Judicial custody for 14 days till 16.9.1994. The accused are directed to be produced on 16.9.1994 before the Special Court (NDPS Act cases) Madras for further proceedings. Properties produced and refunded to Thiru.Ganesan I.O. on behalf of complainant for being produced before Special Court, Madras. Sd/-.....3.9.1994 Addl. Chief Metropolitan Magistrate (E.O.II), Madras. A reading of the said endorsement shows that none of the appellants made any complaint of ill-treatment as against the prosecution party. The first appellant being a qualified person and having travelled widely, it cannot be stated that he could not have understood the implications of rejecting a valuable offer made pursuant to Sec.50 of the Act. It is quite unbelievable that a person of his caliber would have rejected the offer without knowing the benefits underlying the said offer. He is not an illiterate. In the above stated circumstances, I am of the view that the first appellant was duly offered the availability of right to get himself examined in the presence of Magistrate or a Gazetted Officer and that knowing full well of the consequence, he chose not to avail the said offer. The seizure thus having been made in full compliance of Sec.50 of the Act. I hold that there is no flaw in the procedure adopted by the prosecution while effecting the search and seizure of the contraband involved in this case. 43. Having regard to my abovesaid conclusion, there is no necessity to refer to various decisions cited by the learned counsel for the appellant on the question as to whether the appellants were offered after fully making them understand about the benefits of the offer available to them. 43. Having regard to my abovesaid conclusion, there is no necessity to refer to various decisions cited by the learned counsel for the appellant on the question as to whether the appellants were offered after fully making them understand about the benefits of the offer available to them. On the other hand, I propose to rely upon the judgment cited by the learned Public Prosecutor reported in Pon Adithan v. Deputy Director, Narcotics Control Bureau, Madras, J.T. (1999)4 S.C. 540, wherein the Honourable Supreme Court while clarifying the earlier judgment reported in T.P.Razak v. State of Kerala, (1995)4 S.C.C. (Supp.) 256 held that in the absence of any complaint made by the accused when he was produced before the Magistrate on the next day nor on any subsequent date till his statement came to be recorded under Sec.313, Crl.P.C., the statement of the accused can be safely relied upon and that it cannot be said that the trial Court committed any error in doing so. Their Lordships also considered the question from the point of view of the evidence of the searching Officer as supported by the contents of the Mahazar in holding that would amount to sufficient compliance of Sec.50 of the Act. When once the search and seizure is found to be in accordance with law and when the said search and seizure resulted in seizure of the contraband of 110 gms. of Heroin from the first appellant, the complicity of the other appellants along with the first appellant is fully made out. As far as the presence of the other appellants along with the first appellant being not in serious controversy, there is every justification in holding that all the appellants were involved in this joint venture of trafficking in this contraband Heroin which was seized from the first appellant. 44. The stand of the appellants 5 and 6 that they are Sri Lankans, and they do not know Tamil, are all of little consequence inasmuch as the said stand was never taken at any point of time earlier to 313 statement. Therefore, the statement of the other appellants made under Sec.67 of the Act being voluntary statement, the reliance placed was fully justified. On the above said basis, as rightly held by the Court below, the seizure of 1600 American Dollars from A6 is also fully established. Therefore, the statement of the other appellants made under Sec.67 of the Act being voluntary statement, the reliance placed was fully justified. On the above said basis, as rightly held by the Court below, the seizure of 1600 American Dollars from A6 is also fully established. Further M.O.5 serious containing the said foreign money also prove that A6 was found in possession of the said foreign money as pointed out by the learned Public Prosecutor, mere markings on M.O.5 series disclose that it is of foreign origin. Further there was not even a suggestion to any of the witnesses at the instance of the accused that the said M.O.5 series are not foreign money or that they are counterfeit, etc. In such circumstances, the said fact of possession of foreign money by A-6 is also conclusively proved. The case of the prosecution with regard to the search and seizure of the contraband Heroin as well as the foreign money is fully corroborated by the conduct of the accused themselves, inasmuch as the seizure was effected in the presence of all the accused who signed the Mahazar who also gave a statement in writing admitting their joint action which was not immediately retracted so as to claim that the statements were not voluntary. Further more, P.W.6 who has been held to be not a stock witness of the police, has also corroborated the version of the prosecution in toto. In the judgment reported in Naresh J.Sukhawani v. Union of India, 1996 S.C.C. (Crl.) 76, the Honourable Supreme Court was pleased to hold that the statement recorded from the accused would not only bind the person making it, but also the co-accused. I therefore hold that there was compliance of Sec.50 of the Act in all respects. 45. The other submission of the learned counsel for the appellants relating to the compliance of Sec.52(A) of the Act and also violation of Sec 55 of the Act. In this context, it would be appropriate to refer to the judgment of the Honourable Supreme Court reported in Karnail Singh v. State of Rajasthan, (2000)7 S.C.C. 632 , wherein their Lordships, while dealing with an identical contention placed as the instance of the accused have stated the law to the following effect in paragraph 12. In this context, it would be appropriate to refer to the judgment of the Honourable Supreme Court reported in Karnail Singh v. State of Rajasthan, (2000)7 S.C.C. 632 , wherein their Lordships, while dealing with an identical contention placed as the instance of the accused have stated the law to the following effect in paragraph 12. Sec.55 mandates an officer in charge of police station to take charge and keep in safe custody the articles seized under the Act within the local area of that police station which may be delivered to him (emphasis supplied) and shall allow any officer who may accompany such article to the police station or who may be deputed for the purpose to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer in charge of the police station. Relying upon this Section Mr.Jayant Bhushan, learned amicus curiae, submitted that as after the seizure the goods were sent to the Superintendent, Central Narcotics Bureau, Kota, who, as per law, being in charge of a police station, had not affixed his seal on the articles and the samples, the whole of the procedure followed being illegal, entitled the appellant to the acquitted. The argument, though attractive on the face of it, when analysed in depth, is found to be without any substance. 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 a police station empowered under Sec.53 of the Act. If resort is had 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 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 case of the person and the seized articles are referred to the “Officer in charge of the 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 arrests persons. The distinction is also evident from Sec.52-A(Z) 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 be 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. A reading of the victim of the Honourable Supreme Court shows that there is vast difference between an action initiated or pursued by the officer in charge of the nearest police station as distinguishable from an officer in charge of a police station who is empowered under Sec.53 of the Act. Their Lordships have held that if resort is had to the procedure prescribed under Sub-sec.(3)(a) of Sec.52, the applicability of Sec.55 of the Act would be attracted. On the other hand, according to the Honourable Supreme Court 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. Their Lordships also made it clear that there is a clear distinction between the officer in charge of the nearest police station and the officer empowered under Sec.53 of the Act. Their Lordships also made it clear that there is a clear distinction between the officer in charge of the nearest police station and the officer empowered under Sec.53 of the Act. Therefore when an empowered officer as in this case acting under Sec.53 of the Act initiates the whole proceedings, there is no scope for alleging non-compliance of Sec.52(A) of the Act read along with Sec.55 of the Act. Inasmuch as the procedure to be followed by an empowered officer under Sec.53 of the Act is succinctly set out under the Act and therefore he need not be equated to the officer in charge of the nearest police station in the matter of search, seizure and further course of action to be initiated at the instance of an empowered officer under Sec.53 of the Act. 46. The other question to be considered is as to the time delay involved in handling the seized contraband. According to the learned counsel for the appellant, there is no material to show how the goods were dealt with between 3.9.1994 and 28.9.1994. The learned counsel would point out that seizing officer did not use his individual seal and that only regular office seal was used. The learned counsel by referring to the evidence of P.Ws.1 and 2 contended that when P.W.1would state that after the goods were placed before the Court on 3.9.1994, the Court entrusted the material with P. W.2 and that thereafter how the material was handed was not known to him, that prior to that on 2.9.1994, goods were kept in NCB godown along with a forwarding memo by him, that on 3.9.1994 the goods were taken from the godown by P.W.2 while placing it before the Court and P.W.2 would say that after 3.9.1994 when the goods were entrusted with him by the Remand Magistrate, he produced the same again on 8.9.1994 before the Special Court along with Ex.P-15 and since there was no sufficient place in the Court to keep the seized contraband, the Special Court directed the goods again to P.W.2 himself which according to him were deposited in the godown and that on 28.9.1994 since entire material was required for testing, it was produced before Special Court on that date, it was put in a cover and with the Court seal they were sent for laboratory. The learned counsel would also point out that P.W.2 pleaded ignorance as to who received the goods on 2.9.1994 from the N.C.B. godown, that there is no document to show that the goods were placed before the Court on 3.9.1994, that there was no proof to show that the goods were kept in N.C.B. godown between 3.9.1994 and 8.9.1994, and that there is no document to show that the goods were kept in N.C.B. godown between 8.9.1994 and 28.9.1994. The learned counsel contended that while depositing the material in the godown and while taking it out, entries used to be made in the register kept for that purpose. The learned counsel by referring to the standing instructions as contained in 1 of 1988 and 1 of 1989 contended that the instructions contained therein are statutory in nature, that reference to paragraphs 1.5, 1.6 and 1.21 as well as the format in the annexure would go to show that in the matter of handling of the seized contraband, the procedures prescribed under the relevant standing instructions should have been scrupulously followed so as to avoid any manipulation with the seized contraband. 47. The learned counsel further contended that there is also violation of paragraphs 2.2, 2.4, 2.8 and 3.9 of standing instructions 1 of 1989. The learned counsel would state that after deposit of the contraband in the NCB godown it was not explained how it was handled thereafter, that apart from Ex.P-14, dated 2.9.1994, there is no other document to show as to how it was resumed from the godown on 8.9.1994 when the contraband was produced before the Special Court. The learned counsel would state that according to P.W.2, there was no proof to show that the contraband was kept in the N.C.B. godown between 3.9.1994 and 8.9.1994, that there was also no proof to show that the contraband was lying in the NCB godown between 8.9.1994 and 28.9.1994, and that even as per Ex.P-19, the Court seal could have been put only on 28.9.1994 and therefore the above stated facts would go to show that there was total mishandling of the seized contraband at every stage. According to the learned counsel, the linking of the contraband seized with that of the accused is not clinchingly established and it is not known whether what was seized was Heroin at all. According to the learned counsel, the linking of the contraband seized with that of the accused is not clinchingly established and it is not known whether what was seized was Heroin at all. The learned counsel relied upon E.Kesavan v. The Assistant Collector of Customs, Madras, 1986 T.N.L.J. 137 in support of his submission that when there was total mishandling of the seized contraband and the contraband said to have been tested in a chemical laboratory, any conviction based on such a seized contraband cannot be sustained. The learned counsel relied upon The State of Rajasthan v. Daulat Ram, A.I.R. 1980 S.C. 1314 for the proposition that the seized contraband changed several hands before reaching the Public Analyst and in the absence of the examination of those individuals, conviction cannot be sustained. The learned counsel also relied upon Valsala v. State of Kerala, A.I.R. 1993 S.C.W. 3750, for the proposition that when there was delay of more than three months in sending seized article to the Court and when there was no evidence to show that the article seized was sealed and kept in proper custody in the police station before it was sent for chemical examination, the conviction cannot be sustained. The learned counsel also relied upon the judgment of the single Judge of Delhi High Court reported in Mohd. Hashim v. State, Delhi, 2000 Crl.L.J. 1510, for the proposition that where doubt is created by virtue of insufficient evidence about entry of contraband in the register which showed, vital link between the contraband seized and report of chemical examiner missing providing scope for tampering of samples and in such circumstances, the conviction of the accused cannot be sustained. The learned counsel also relied upon the Division Bench judgment of Bombay High Court reported in T.Hamza v. State of Kerala, 2000 Crl.L.J. 216, in support of his submission that where the prosecution failed to prove that the contraband seized was actually deposited in the police station and duly entered in the register kept for that purpose it would go to show that there was no proper link of the seized contraband and its presumption to the chemical analyst and further there was no explanation as to why contraband was sent to chemical analyst after lapse of 15 days which itself would vitiate the case of the prosecution. 48. 48. The learned counsel appearing for the other appellants also submitted that the prosecution failed to establish that the contraband was kept in safe custody after it was entrusted with P.W.2 by the Court on 8.9.1994. The learned counsel contended that in the absence of the production of the godown register, it cannot be held that what was seized alone was sent for chemical analysis. 49. To counter the submission of the learned counsel for the appellants, the learned Public Prosecutor would state that as per the version of P.W.1, the contraband of 110 gms. seized from A-1, as well as the American Dollars seized from A-5 were sealed at the place of occurrence itself, that the said contraband when it was opened in the presence of the Court on the date of the deposition namely, 14.3.1996, contained the Court seal, that M.O.1 which was recovered from the first accused on 2.9.1994 was kept in tact with the seal on the cover in which it was kept with the signatures of all the accused, that when M.O.1 presented before the Addition Chief Metropolitan Magistrate on 3.9.1994, the learned Magistrate has also signed the said M.O.1, that M.O.2 which was the contraband recovered from the house of A-1 under Ex.P-3 also contained the signature of A-1 as well as P.W.6, that the seized American Dollars to the value of Rs.1,600 was put in a paper cover with the sal which was also signed by all the accused and it was also signed by the Magistrate on 3.9.1994 under M.O.4 and M.O.5 series and therefore there was no scope lor opening the sealed packet at any later point of time. The learned Public Prosecutor referred to the remand report Ex.P-4 which was dated 3.9.1994 which would show that all the seized contraband as well as the foreign money were duly produced before the Court on 3.9.1994 at 5.30 p.m. as per the endorsement of the Additional Chief Metropolitan Magistrate, E.O.2, Madras, when, the properties were put in a cover which was again sealed by the Court, that it was later on presented in the Court and in the circumstances when all the material objects under annexure 3.2 of the remand report were put in a sealed cover with the Court seal, there is no scope for countenancing the contention of the appellants that the contraband seized were not sent for chemical analysis in tact. The learned Public Prosecutor further contended that Ex.P-2 Mahazar also would show that immediately after the first accused handed over the Heroin, of 110 gms, a small quantity was tested with the kit carried by the prosecution party which satisfactorily revealed that the same was Heroin and at that point of time, A-1 came forward and stated that it was only heroin. In those circumstances, according to the learned Public Prosecutor, what was seized was the prohibited substance of contraband of Heroin which was fully established at the time of seizure itself and therefore it is too late in the day for the appellants to contend that the seized contraband would not have contained Heroin as claimed by them. 50. The learned Public Prosecutor further contended that there was not even a remote suggestion to any of the witnesses that what was seized was not Heroin, that even in 313 statement, there was no claim made at the instance of the appellants that the seized articles were not Heroin and that even to P.W.7, the Chemical Analyst, no suggestion was made and P.W.7 confirmed that before the started analysis, he found the condition of the seal in tact on the samples. The learned Public Prosecutor further referred to Ex.P-9 the report of the Chemical Analyst which showed that on test, it was found that the contraband contained digital morphine to the extent of 30% and thereby establishing the fact that the seized contraband was prohibited substance. The learned Public Prosecutor further referred to Ex.P-9 the report of the Chemical Analyst which showed that on test, it was found that the contraband contained digital morphine to the extent of 30% and thereby establishing the fact that the seized contraband was prohibited substance. As regards the contraband, based on the seizure held at the residence of the first accused, the learned Public Prosecutor fairly conceded that there was no fool proof system followed in the recovery of the alleged 250 ml. gms of contraband and also that as disclosed by the evidence on record that there is vast difference in the weight of contraband seized which according to the prosecution was 250 ml., while as a matter of fact, as found by the Chemical Analyst in Ex.P-19, it contained only 0.060 gms. 51. The learned Public Prosecutor by referring to paragraph 8 of Ex.P-4 the remand application submitted that all the original documents as per the annexure 1 and the seized properties as per annexure 3 were produced before the Court, that necessary application under Ex.P-15 was also filed on 8.9.1994 for the drawl of the samples though no order was passed on the said application. The learned Public Prosecutor would submit that when the whole contraband seized was in the safe custody of the Court by virtue of the seal contained on the packet which consist of all the material objects 1 to 3, where the Court seal was affixed, it should be held that the whole contraband as well as the foreign money were all in the Court custody till it was sent to the Chemical analyst on 28.9.1994 and when Chemical Analyst has deposed before the Court that at the time when he received the contraband, the seals were found in tact, there is absolutely no scope for holding that there was any manipulation or tampering in the matter of dealing with the seized contraband. The learned Public Prosecutor relied upon Baldev Singh v. The State of Himachal Pradesh 1976 Crl.L.J. 758, for the proposition that if in any case, the witness is not cross-examine on a particular aspect and unless his statement suffers from improbability, it should be presumed that whatever he stated is true by the person who is afforded an opportunity to cross-examined the said witness. The learned counsel also relied upon State of Himachal Pradesh v. Thakur Dass and etc., 1983 Crl.L.J. 1694, for the same proposition. The learned Public Prosecutor relied upon Collector of Customs, Madras and others v. D.Bhoormull, 1974 M.L.J. (Crl.) 489, a judgment of the Honourable Supreme Court and contended that in all criminal proceedings in the matter of proof, while appreciating its scope and nature of onus, held that prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree, for, in all human affairs absolute certainty is a myth, that the law does not require the prosecution to prove the impossible and all that it requires is the establishment of such a degree of probability that a prudent man may; on its basis, believe in the existence of the fact in issue and thus legal proof is not necessarily perfect proof when it is nothing more than a prudent man’s estimate as to the probabilities of the case. 52. The learned Public Prosecutor also relied upon Inder Singh v. State (Delhi Administration), 1978 Crl.L.J. 766: A.I.R. 1978 S.C. 1071 for the proposition that while it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect and that proof beyond all reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes. The Honourable Supreme Court went on to hold that judicial quest for perfect proof often account for police presentation of fool-proof concoction. The learned Pub1ic Prosecutor also relied upon State of Maharashtra v. Mohd. Yakub and others, 1980 Crl.L.J. 793: A.I.R. 1980 S.C. 1111, for the Proposition that Evidence Act does not insist on absolute proof for the simple reason that perfact proof in this imperfect world is seldom to be found. The Honourable Supreme Court also held that under Sec.3 of the Evidence Act, a fact in said to be ‘proved’ when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The Honourable Supreme Court also held that under Sec.3 of the Evidence Act, a fact in said to be ‘proved’ when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Thus, if the circumtances establish such a high degree of probability that a prudent man ought to act on the supposition about the commission of the offence in contravention of law that will be sufficient proof of that fact in issue. The learned Public Prosecutor contended that the trial Court after considering the submission made at the instance of the prosecution with regard to the custody of the contraband seized between 3.9.1994 and 28.9.1994 having been satisfied with the safe manner in which it was handled during the relevant period, there is no scope for interfering with the said finding of the Court below. 53. As regards the above issue as to whether there was any scope at all to meddle with the contraband seized as claimed by the appellant, the basis for the said argument is that there is no satisfactory explanation by the prosecution as to how the seized contraband was handled in between 3.9.1994 and 28.9.1994 when it was sent to the Chemical Analyst for testing. The evidence available on record disclose the following factors. (i) the contraband was seized on 2.9.1994 from A-1 in so far as that was covered by M.O.1 and the other contraband said to have been seized from the house of A1 which was claimed to be 250 ml.gms but in actual fact, it contained only 0.060 gms under M.O.3. The evidence available on record disclose the following factors. (i) the contraband was seized on 2.9.1994 from A-1 in so far as that was covered by M.O.1 and the other contraband said to have been seized from the house of A1 which was claimed to be 250 ml.gms but in actual fact, it contained only 0.060 gms under M.O.3. As far as the above article seized under M.O.1 was concerned, the same was sealed at the time of seizure and the signatures of all the accused were obtained on M.O.1, while the seizure of M.O.3 contained the signature of the first accused, P.W.6 and other officers of the prosecution party; (ii) all the documents including the seized articles were placed before the Additional Chief Metropolitan Magistrate on 3.9.1994 who after recording the above said fact, handed over to P.W.1 for being produced before the Special Court, Madras; (iii) according to P.W.1 as well as P.W.2, the properties were again produced before the Court on 8.9.1994 when the prosecution sought for the permission of the Court under Ex.P-15 for sample testing. It is also in evidence that to prove that it was placed before the Special Court on 8.9.1994, there was ample evidence to show that it contained Court seal of that date; (iv) it is claimed that between 8.9.1994 and 28.9.1994 on which date, the contraband was forwarded to the Laboratory for Chemical analysis, the properties were kept in the N.C.B. godown, though as admitted by P.W.2, there is no proof to show that it was kept in N.C.B. godown between 8.9.1994 and 28.9.1994. (v) it is in the evidence of P.W.7 Chemical Analyst that when the seized contraband was forwarded to him and received by him on 28.9.1994, the seals were found to be in tact; (vi) it is also elicited in the cross-examination of P.W.1 that on 14.3.1996, when the properties seized under Ex.P-2 was opened in the presence of the Magistrate, it contained the seal of the Court. It is also in his evidence that 110 gms of Heroin seized from A-1 on 2.9.1994 was found in M.O.1 and the brown cover was found in tact with the seal which also contained the signatures of all the accused as well as P.W.6 and the other Auto Driver. It is also in his evidence that 110 gms of Heroin seized from A-1 on 2.9.1994 was found in M.O.1 and the brown cover was found in tact with the seal which also contained the signatures of all the accused as well as P.W.6 and the other Auto Driver. It is also in his evidence that when the seized contraband under MO1 was presented before the Additional Chief Metropolitan Magistrate on 3.9.1994, he also affixed his signature on that. He also deposed that M.O.3 contained the contraband seized from the house of A-1 where the signature of the first accused, P.W.1 and the other Auto driver were found. It is also stated by him that 1600 American Dollars seized from A-5 under M.O.4 and M.O.5 series on 2.9.1994 was placed before the Additional Chief Metropolitan Magistrate on 3.9.1994 who affixed his signature on that. (vii) There was not even a suggestion to P.W.7 that the contraband seized was not Heroin. Except the general retraction made at the time of recording 313 statement, at no point of time earlier to that, the accused retracted from their statements made under Sec.67 of the NDPS Act. 54. On the basis of the above said incontroverted factors when analysed, I could see that there is very little scope for the appellants to contend that what was seized was not sent for analysis on 28.9.1994. The period between 3.9.1994 and 28.9.1994 cannot be construed as delay at all in the case on hand as is said to have been caused on the part of the prosecution in the matter of placing the material before the Special Court, because on 3.9.1994 when the contraband was placed before the Additional Chief Metropolitan Magistrate, he entrusted the seized contraband and other article with P.W.2 with a direction to place it before the Special Court. Thereafter P.W.2 placed all the papers along with the material objects before the Special Court on 8.9.1994, when again the Special Court directed P.W.2 to keep the contraband in safe custody. It is also brought out in evidence that the seized contraband along with the other materials were put in one single cover which was sealed by the Court as disclosed from the seal contained on the said cover. It transpires that all the proceedings and material objects were presented before the Court. It is also brought out in evidence that the seized contraband along with the other materials were put in one single cover which was sealed by the Court as disclosed from the seal contained on the said cover. It transpires that all the proceedings and material objects were presented before the Court. The material objects under annexure III seemed to have been put in one single cover on which the Court seal was put. The accused also did not raise any protest in any respect with regard to either handling of the accused or material seized from them by the prosecution officials. The evidence of P.W.7 confirms that when he received the seized contraband on 28.9.1994, for testing, he found the seals in tact. Except the drastic variation in the weight of the contraband seized under M.O.3, in all other respects, I do not find any major discrepancy in the case pleaded by the prosecution and the facts as established before the Special Court. Therefore by applying the dictum of the Honourable Supreme Court, in the matter of proof of a case pleaded by the prosecution as reported in Collector of Customs, Madras v. Bhoormull, 1974 M.L.J. (Crl.) 489, Inder Singh v. State Delhi Administration, A.I.R. 1978 S.C. 1071: 1978 Crl.L.J. 766 and State of Maharashtra v. Mohd, Yakub, 1980 Crl.L.J. 793: A.I.R. 1980 S.C. 1111 it can be safely concluded that there was sufficient evidence placed before the Court by the prosecution party establishing the true nature of the contraband which were seized from the accused and the same were placed before the Analyst who confirmed it to have contained the required percentage of Digital Morphine to hold that what was seized was prohibited contraband substance namely ‘Heroin’. The various other circumstances were all of insignificant nature and going by such minor discrepancies, it cannot be stated that the whole case of the prosecution was false. The various other circumstances were all of insignificant nature and going by such minor discrepancies, it cannot be stated that the whole case of the prosecution was false. I am satisfied that the prosecution discharged its initial burden of possession of contraband substance by the accused and the said presumption having been failed to be satisfactorily rebutted by the appellants, the accused are liable to be convicted as held by the Court below Having regard to the fact that the appellants did not retract from their statements at the earliest point of time, I hold that due weight can be attached to the statements of the appellants rendered under Sec.67 of the Act which also confirms the case as pleaded by the prosecution. I do not find any discrepancy much less a glaring one to hold that there was mishandling of the contraband seized by the prosecution party on 2.9.1994 which was sent for chemical analysis on 28.9.1994. 55. The contraband as covered by M.O.3 disclose that while the prosecution claimed that what was seized was 250 ml.gms., what was found by Chemical Analyst was only 0.060 gms. There is no scope for holding that seizure was proved beyond all reasonable doubts. Unfortunately even as pleased by the prosecution witnesses, no weighment was made at the time of seizure of the said contraband at the residence of the first appellant and that the weight was assumed as 250 ml.gms. On the basis of the statement made by A-1. Therefore irrespective of the factum of seizure made as regards M.O.3 from the residence of A-1, having regard to the material discrepancy in the matter of weight, it will not be safe to rely on the said seizure as stated to have been made by the prosecution party. However, having regard to the concrete proof relating to the seizure of 110 gms. of Heroin under M.O.1 along with seizure of foreign money of 1,600 American Dollars under Ex.P-4 and M.O.5 series, I hold that the prosecution proved the involvement of the accused of the offences committed by them. Having regard to my findings on the various points raised by the appellants not being acceptable, I hold that the appeals should fail and they are dismissed. Having regard to my findings on the various points raised by the appellants not being acceptable, I hold that the appeals should fail and they are dismissed. The conviction and sentence imposed by the trial Court on the basis of the seized contraband under M.O.1 as well as Ex.P-4 and M.O.5 series on all the appellants herein are confirmed. No costs. However taking into account that the Appellants are in prison for the past six years the sentence to be undergone in default of payment of time is reduced to six months instead of one year.