JUDGMENT - S.G. MAHAJAN, J.:---Accused No. 1 Yogesh Rambhau Urkude in Special Criminal Case No. 23/1999 on the file of Special Judge (N.D.P.C. Court), Nagpur has challenged the order of conviction and sentence passed against him. He was convicted of the offences under section 20(b)(i) and section 29 of Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as "N.D.P.S. Act", and was sentenced to suffer R.I. for 2 years and to pay a fine of Rs. 5,000/- or in default to suffer R.I. for 3 months more for the offence under section 20(b)(i) of N.D.P.S. Act and to suffer R.I. for 1 year and 6 months and to pay a fine of Rs. 5,000/- or in default to suffer R.I. for 3 months more for the offence under section 29 of N.D.P.S. Act. The substantive sentences were directed to run concurrently. Accused No. 2 Shankar s/o Ramlu Chatala was also convicted of the abovesaid offences and was sentenced, but he has not preferred any appeal. Accused No. 3 Jyoti w/o Yogesh Urkude was acquitted of the offences with which she was charged. Thus, accused No. 1 Yogesh s/o Rambhau Urkude is the only appellant before this Court. 2. The case of the prosecution is as follows : (A) On 27-3-1999, Head Constable Samshad Ahemad Khan who was attached to Narcotic Cell Crime Branch, Nagpur was patrolling along with Police Inspector Narcotic Cell Crime Branch Shri Madavi and the other police staff for collecting the information as regards the Narcotic Drugs. Around 2 p.m. he received a secret information that one person from Andhra Pradesh had come with Ganja at the house of accused/appellant Yogesh at Vinoba Bhave Nagar, Nagpur. Head Constable Khan accordingly prepared a report in writing as to the information received as above and submitted the same to Police Inspector who was with him. Police Inspector Madavi directed to arrange for raid. Head Constable Khan thereupon called two panchas and went to Vinoba Bhave Nagar with them along with P.I. Madavi and the members of police staff. They reached the house of the accused/appellant at about 2.25 p.m. A call was given to accused/appellant Yogesh. The accused/appellant came out. Head Constable Khan told him about the information received and his intention to take the search of the person and house of the accused/appellant. They reached the house of the accused/appellant at about 2.25 p.m. A call was given to accused/appellant Yogesh. The accused/appellant came out. Head Constable Khan told him about the information received and his intention to take the search of the person and house of the accused/appellant. Head Constable Khan also apprised him of his entitlement to be searched in presence of a Gazetted Officer or a Magistrate and further informed him that Shri Madavi was the Gazetted Officer and also told that if the accused/appellant would desire, the presence of any other Gazetted Officer could be arranged. Head Constable Khan also issued a written notice to the accused/appellant to that effect. The accused declined to be searched in presence of any such officer. Head Constable Khan offered the searches of himself as well as police staff and panchas, but the appellant/accused refused to take the same. (B) The police and panchas then entered the house. Accused No. 2 Shankar was present in the house with a gunny bag. Head Constable Khan gave accused No. 2 Shankar in the custody of police staff. Accused No. 3 Sou. Jyoti who is the wife of accused/appellant Yogesh was also present in the house. Her custody was given to W.P.C. Vandana. (C) Head Constable Khan then took the search of the person of the accused/appellant. The cash of Rs. 200/- was found in the pocket of his pant. Head Constable Khan took the cash in his custody and then took the search of the house. In the first room of the house there was a white coloured plastic bag placed below the iron cot. It was containing Ganja. On weighing the same it was found to be 3 kg. 700 grams. Head Constable Khan collected two samples of 24 grams each from the Ganja and sealed the same. The remaining Ganja was also sealed in the plastic packet. The samples were marked as S-1 and D-1 and the parcel of remaining Ganja was marked as P-1. Head Constable Khan then handed over the custody of accused and the property to the police staff. (D) Head Constable Khan then told accused No. 2 Shankar about the information received and about his intention to take the search of the person of accused No. 2 as well as that of gunny bag with him. Head Constable Khan then handed over the custody of accused and the property to the police staff. (D) Head Constable Khan then told accused No. 2 Shankar about the information received and about his intention to take the search of the person of accused No. 2 as well as that of gunny bag with him. Head Constable Khan also apprised accused No. 2 Shankar of his right to be searched in presence of a Gazetted Officer or a Magistrate and gave him a notice in writing under section 50(1) of N.D.P.S. Act. Accused No. 2 Shankar declined to be searched in presence of any such officer. Head Constable Khan then took the search of gunny bag wherein Ganja was found. It was weighed. It weighed 2 K.G. Head Constable Khan collected two samples of Ganja, each of 25 grams and sealed the same. The remaining Ganja was also sealed in the gunny bag. The samples were marked as S-2 and D-2 and the gunny bag was marked as P-2. On taking the search of the person of accused No. 2 Shankar, the cash of Rs. 70/- was found in the pocket of his pant. Head Constable Khan handed over the custody of the cash, property and accused No. 2 to police staff. (E) Head Constable Khan again informed accused No. 3 Jyoti the purpose of her search and apprised her of her entitlement to be searched in presence of Gazetted Officer or a Magistrate as required by section 50(1) of N.D.P.S. Act by giving her written notice. She put an endorsement that she did not require the presence of any officer. Head Constable Khan offered the searches of himself and police staff, but the accused refused to take the same. Head Constable Khan then directed W.P.C. Vandana to take the search of accused No. 3 Jyoti in a secluded place. W.P.C. Vandana took the search of the person of accused No. 3 Jyoti in a secluded place in a house and found 4 packets of Ganja and cash of Rs. 55/-. The Ganja was weighing 25 grams in total. The Ganja and the wrappers of 4 packets were sealed separately. The sample of Ganja was marked as S-3 and the parcel of wrappers of 4 packets was marked as P-3. (F) Head Constable Khan informed the accused persons about the offence committed by them and effected their arrest. 55/-. The Ganja was weighing 25 grams in total. The Ganja and the wrappers of 4 packets were sealed separately. The sample of Ganja was marked as S-3 and the parcel of wrappers of 4 packets was marked as P-3. (F) Head Constable Khan informed the accused persons about the offence committed by them and effected their arrest. He also prepared the panchanama of search and seizure. (G) Head Constable Khan lodged the report in Police Station, Kalamna. P.S.I. Lagad who was incharge of Police Station as a Duty Officer registered the crime. Head Constable Khan handed over the property and the accused persons to P.S.I. Lagad. P.S.I. Lagad again sealed the samples and parcels with his own seal and handed over the Muddemal as well as cash and the documents to Malkhana Incharge. The entry of deposit of the property and other articles stated above was taken in the Muddemal Register. Head Constable Khan submitted a compliance report under section 57 of N.D.P.S. Act to Police Inspector Crime Branch. The samples were forwarded to Chemical Analyser and the Chemical Analyser reported that Ganja was detected in all the three samples which were forwarded to him for examination. The accused thereafter came to be charge-sheeted. 3. The charge of the offences under sections 20(b)(i), 25 and 29 of the N.D.P.S. Act was framed against accused No. 1 Yogesh who is the appellant herein and that of the offences under sections 20(b)(i) and 29 of N.D.P.S. Act was framed against accused No. 2 Shankar and No. 3 Jyoti. The charge was explained to the accused persons and they pleaded not guilty. Their defence was of denial. The defence of accused No. 1, as it is revealed from the cross-examination of the prosecution witnesses made by the learned Counsel is that, the house which was searched was not owned and possessed by him. 4. The learned Special Judge held that accused No. 1 Yogesh (present appellant) was the owner and the person in possession of the house that was searched. He further held that the contraband Ganja was found placed below the iron cot. So the offence of possession of Ganja was held to be made out against accused No. 1 Yogesh. 4. The learned Special Judge held that accused No. 1 Yogesh (present appellant) was the owner and the person in possession of the house that was searched. He further held that the contraband Ganja was found placed below the iron cot. So the offence of possession of Ganja was held to be made out against accused No. 1 Yogesh. So far as accused No. 2 Shankar is concerned, the learned Special Judge found that he was present in the house of accused No. 1 with the gunny bag containing Ganja. So the offence of possession of Ganja was also held to be proved against accused No. 2 Shankar. Thus, both the accused were found guilty under section 20(b)(i) of N.D.P.S. Act. Considering the information received by Head Constable Khan about the arrival of the person from Andhra Pradesh with Ganja at the house of accused No. 1 Yogesh, and the further proof of possession of both the accused of contraband Ganja, the learned Special Judge drew an inference that both the accused i.e. accused Nos. 1 and 2 were involved in the sale of contraband with a prior plan and on the basis thereof he held that both the accused had conspired to commit the offence under section 20(b)(i) of N.D.P.S. Act and were therefore liable for the offence punishable under section 29 of N.D.P.S. Act. 5. So far as the offence under section 25 of N.D.P.S. Act is concerned which provides the punishment for allowing the use of the house etc. to some other person to commit the offence under the Act, the learned Special Judge was of the opinion that since accused No. 1 Yogesh (present appellant) himself was involved in the offence with accused No. 2 Shankar, the offence was not of the nature so as to say that only accused No. 2 Shankar was permitted to use the premises for the commission of offence. So, the learned Judge held that the accused/appellant was not guilty of the offence under section 25 N.D.P.S. Act and he accordingly acquitted accused/appellant of that offence. 6. In respect of accused No. 3 Jyoti, the learned Special Judge found that there was a lack of necessary compliance of the provisions on the part of the Investigating Officer so far as the procedure was concerned. 6. In respect of accused No. 3 Jyoti, the learned Special Judge found that there was a lack of necessary compliance of the provisions on the part of the Investigating Officer so far as the procedure was concerned. The learned Judge expressed that the evidence on record shows that W.P.C. Vandana took the search of the person of accused Jyoti, but no female panchas were called while taking search, and it was also not made clear that accused No. 3 Jyoti was taken to a secluded place which could not be within the view of the male members of the raiding party. The Judge relied on (Veneela Tilak v. Shahasane, Asstt. Collector of Customs and another)1, 1997(2) Mh.L.J. 337 which lays down that while conducting the personal search of a woman, female panchas must be called and the woman accused must be taken to a secluded place. It was observed that merely calling female officer to search the accused would not fulfil the legislative intent. In this view, the learned Judge held that the search of accused No. 3 Jyoti conducted in this case could not be considered as a lawful one, and therefore the prosecution has failed to establish lawfully that the said accused was found in possession of contraband Ganja. As regards the charge of having entered into the conspiracy levelled against accused No. 3 Jyoti, the learned Special Judge found that there was no convincing evidence to show that she was also a party to the conspiracy to commit the offence under N.D.P.S. Act. The learned Special Judge accordingly acquitted accused No. 3 Jyoti of all offences with which she was charged. 7. Heard Shri A.K. Bhangde, the learned Counsel for accused/appellant Yogesh and Shri Doifode, the learned A.P.P. 8. It was the stand taken by the accused/appellant in the trial Court that Head Constable Khan did not reduce into writing the secret information that was alleged to be received by him, on a separate sheet and as such there was a non-compliance of the provision under section 42(1) of N.D.P.S. Act. In this connection, it may be noted that Head Constable Khan, on receipt of secret information about the arrival of accused No. 2 Shankar at the house of accused/appellant, immediately drew the report on the spot itself where it was received. The copy of the said report is at Ex. In this connection, it may be noted that Head Constable Khan, on receipt of secret information about the arrival of accused No. 2 Shankar at the house of accused/appellant, immediately drew the report on the spot itself where it was received. The copy of the said report is at Ex. 36 on the trial Court's record. Though it is styled as a first information report, it is shown to be under section 42(1) and (2) of N.D.P.S. Act. Ex. 36 was therefore nothing but the information reduced into writing by Head Constable Khan under section 42(1) N.D.P.S. Act. Thus, it cannot be said that there was a violation of the mandatory provision of section 42(1) of NDPS Act. 8-A. The provision of sub-section (2) of section 42 of N.D.P.S. Act requires the officer taking down the information under sub-section (1) to send forthwith a copy thereof to his immediate official superior. The evidence of Head Constable Khan clearly shows that he handed over the original information report to Shri Madavi who was his immediate official superior. The said information report was delivered by Head Constable Khan to Shri Madavi on the spot itself as Shri Madavi was accompanying the raid. The evidence on record also shows that Police Inspector Madavi immediately issued the directions to conduct the raid. The endorsement to that effect is to be found on Ex. 36. Though section 42(2) provides for sending the copy of the information to the superior officer, Head Constable Khan submitted the original report containing the information itself. Thus, there was a compliance of the provisions of section 42(1) and (2) of N.D.P.S. Act. 9. The learned Counsel for the accused/appellant submitted that there was a violation on the part of Investigating Officer of the provision under section 50(1) of N.D.P.S. Act since the accused were not apprised of their right to be a searched in terms of the abovesaid provision. The learned Counsel invited my attention to the version of Head Constable Khan which shows that he had given the option of search in presence of a Gazetted Officer or a Judicial Magistrate. As per the learned Counsel, this is not a sufficient compliance of section 50(1) of N.D.P.S. Act. The learned Counsel invited my attention to the version of Head Constable Khan which shows that he had given the option of search in presence of a Gazetted Officer or a Judicial Magistrate. As per the learned Counsel, this is not a sufficient compliance of section 50(1) of N.D.P.S. Act. He canvassed that the Magistrate referred to in section 50(1) of the N.D.P.S. Act is an Executive Magistrate and not a Judicial Magistrate and when the option was given by the Head Constable Khan to the accused for their search in presence of a Gazetted Officer or a Judicial Magistrate, the option in regard to the search in presence of Executive Magistrate was withheld. The Counsel for appellant further pointed out the version of Head Constable Khan that he told the accused that P.I. Madavi who was with him was a Gazetted Officer. The learned Counsel submitted that when a Gazetted Officer is a part of the raiding party, giving an option of being searched in presence of such Gazetted Officer is not a sufficient compliance of section 50(1) of N.D.P.S. Act. In support of his contention, he cited (Dharamveer Lekhram Sharma and another v. The State of Maharashtra and others)2, 2001(5) Bom.C.R. 9. The submission of the learned A.P.P. in this behalf was that Head Constable Khan also gave the further option to the accused saying that if desired by the accused, he could arrange for the presence of another officer also. 10. The requirement of apprising the person of his right to be searched in presence of a Gazetted Officer or a Magistrate arises if the empowered officer is about to search the person of the accused. In the present case, during the search of the person of accused/appellant Yogesh no contraband was found and the seizure of Ganja was made from him during the search of his house. So, the provision of section 50(1) of N.D.P.S. Act would not be attracted in the case of seizure of contraband from accused/appellant Yogesh which was found in his house. If there is any non-compliance of section 50(1) of N.D.P.S. Act, the search of the house and seizure of contraband from the house would not be affected thereby. 11. So, the provision of section 50(1) of N.D.P.S. Act would not be attracted in the case of seizure of contraband from accused/appellant Yogesh which was found in his house. If there is any non-compliance of section 50(1) of N.D.P.S. Act, the search of the house and seizure of contraband from the house would not be affected thereby. 11. The learned Counsel for accused/appellant further pointed out that as per the decision in Dharmaveer Lekhram Sharma's case, the search and seizure of contraband from the bags which were allegedly held by the accused and were kept near them would attract the provision of section 50 of N.D.P.S. Act. The earlier decision of the Apex Court in (Kalema Tumba v. State of Maharashtra and another)3, 2000(5) Bom.C.R. (S.C.)545 was held inapplicable to the set of facts in the case of Dharmaveer Lekhram Sharma's case cited above. However, in this appeal the above question need not be gone into because the seizure of ganja from the bag was made in this case which was with accused No. 2 Shankar and he has not preferred any appeal against the order of conviction and sentence passed against him. 12. The learned Counsel for accused/appellant Yogesh further canvassed that there is no corroboration to the testimony of Head Constable Khan from the independent witnesses. Both the panch witnesses who were examined did not support the prosecution. As per the learned Counsel, no reliance can be placed on the version of Head Constable Khan in absence of corroboration from the independent witnesses. In support of his contention, he again cited Dharmaveer Lekhram Sharma v. The State of Maharashtra, 2001(5) Bom.C.R. 9 (para 14). The learned Counsel further submitted that Police Inspector Madavi who was accompanying the raid was not examined by the prosecution. He further canvassed that there was no attempt on the part of the Investigating Officer to collect the independent witnesses from the locality. 13. There is no proposition of law that the testimony of Police Officer, if not corroborated by independent witnesses, should not be believed. If the evidence of Police Officer is cogent and it does not suffer from any infirmities, there is no reason why it should be dismissed for want of non-corroboration from independent witnesses. In the case cited above, there were several peripheral infirmities in the prosecution evidence which had weakened the case. If the evidence of Police Officer is cogent and it does not suffer from any infirmities, there is no reason why it should be dismissed for want of non-corroboration from independent witnesses. In the case cited above, there were several peripheral infirmities in the prosecution evidence which had weakened the case. This aspect rendered the documents i.e. panchanama and F.I.R. doubtful. In such circumstances, the need of corroboration from the panch witnesses was held necessary. In the instant case, the evidence of Head Constable Khan stands the test of satisfaction and it does not suffer from any infirmities. So, the want of corroboration from the independent witnesses would not affect the prosecution case. 14. The Counsel for the accused/appellant further submitted that the evidence collected by the Investigating Officer in this case does not show as to who was the owner of the premises and who was in actual possession thereof. He pointed out that the evidence in the form of ration card, electricity bill, tax receipts etc. was not collected. From the suggestions made by the Counsel for defence to Head Constable Khan, during his cross-examination, the defence of the accused/appellant appears to be that the house that was searched was not owned and occupied by him and the same was belonging to Rambhau Urkude, the father of accused/appellant and was in his occupation. It is also the further defence of the accused/appellant that he and accused No. 3 were called from their house at Indora Chowk to the Police Station and they were falsely implicated for unclaimed Muddemal meaning thereby it was foisted in their name. The learned Counsel further contended that the Investigating Officer did not record the statements of the neighbours to verify whether the accused/appellant was really the resident of that house. He also submitted that the Investigating Officer did not make any attempt to see the names inscribed on the utensils in the kitchen of the house. According to the learned Counsel for the accused/appellant the proof as regards the ownership and occupation of the accused/appellant in respect of the premises searched was necessary and in absence of such proof the conviction is liable to be set aside. In support of his contention he cited (Mohd. Aslamkhan v. Narcotics Control Bureau and another)4, 1996 S.C.C. (Cri.) 1062. 15. In support of his contention he cited (Mohd. Aslamkhan v. Narcotics Control Bureau and another)4, 1996 S.C.C. (Cri.) 1062. 15. It is true that no evidence as regards the ownership of the house was collected by the Investigating Officer. However, the evidence on record clearly shows that when the raid was effected, the accused/appellant was found present in the house and there were no other family members besides his wife. There is no possibility that there might be some other members of the family occupying the house; because as per the own assertion of the accused/appellant made in the form of suggestion during the cross-examination of Head Constable Khan, he was residing separately from his father. The presence of the accused and his wife would clearly go to establish his occupation of the premises. The authority Mohd. Aslamkhan v. Narcotic Control Bureau and another cited by the learned Counsel for accused/appellant is not applicable to the present case on facts. In the cited case the search was conducted in the absence of the accused by breaking open the lock. There was no other satisfactory proof showing the ownership and possession of the accused in respect of the premises. Here in the instant case, the presence of the accused himself with his wife is sufficient to raise an inference that he was in possession of the house. 16. The learned Counsel for the accused/appellant lastly submitted that the conspiracy between accused/appellant Yogesh and accused/appellant Shankar is not proved. As per the prosecution, accused/appellant Yogesh and accused Shankar had agreed to commit the offence of sale of contraband. Of course, the direct proof of conspiracy is rarely available. Most of the time we have to rely on the circumstantial evidence. As it is revealed from the evidence of Head Constable Khan, he had received a secret information that a person from Andhra Pradesh had arrived at the house of accused/appellant with a gunny bag of Ganja. The said information was even reduced into writing by Head Constable Khan and later on during the raid it was found to be correct. Accused/Yogesh was found in possession of Ganja as well as accused No. 2 Shankar was found in possession of a bag containing Ganja. The necessary inference that can be drawn is that both the accused had planned to sell the Ganja. Accused/Yogesh was found in possession of Ganja as well as accused No. 2 Shankar was found in possession of a bag containing Ganja. The necessary inference that can be drawn is that both the accused had planned to sell the Ganja. It is true that no overt act is shown on the part of accused/appellant Yogesh and accused Shankar in respect of sale of Ganja, but when the agreement is to commit an offence an overt act is unessential. Entering into conspiracy itself would be an offence. 17. In the result, there is no merit in the appeal preferred by accused/appellant Yogesh and the same fails. 18. The appeal is dismissed. Appeal dismissed. -----