NARAYAN CHANDRA SIL, J. ( 1 ) THESE appeals have been taken up for analogous hearing since the same were directed against the judgment and order of conviction dated 28/2/1997 passed by Shri B. K. Lala, the learned Judge, Special Court, under the Narcotic Drugs and Psychotropic Substances Act, Alipore 24 Parganas (South ). The learned Judge was pleased to find the appellants Farid Ali and Ramesh Singh guilty for committing offence under Section 21 of the N. D. P. S. Act and sentence them to undergo rigorous imprisonment for 10 years and also to pay fine of Rs. 1,00,000/- each and in default of payment of such fine to undergo further rigorous imprisonment for a term of one year. The learned Judge was, however, pleased to find the other accused, Safikul Islam not guilty of the charges framed against him and accordingly he was acquitted and released from the bail bond. ( 2 ) IT is stated in the memo of appeal that the learned Judge failed to consider the various infirmities appearing in the evidence of the witnesses. The judgment and the order of conviction passed by the learned Judge are based on conjectures and surmises, it is further stated. The learned Judge failed to consider that there were several disinterested witnesses, including the passengers visitors and many, others in Sealdah Railway Station and ticket booking counter who were not cited as witness in the instant case. It is also pointed out in the memo of appeal that the learned Judge overlooked the vital aspects under the provisions of Section 50 of the N. D. P. S. Act, 1985 which are mandatory upon the prosecution. But the same had not been complied with. It is also stated in the memo of appeal that the alleged search by the prosecution was not made in accordance with the relevant provisions. The learned Judge had overlooked the provisions of Section 40 (1) of the N. D. P. S. Act wherein it is provided the information should be reduced in writing, but in the instant case the same was not followed. It is also pointed out that the learned Judge had overlooked the fact that the prosecution failed to establish the exclusive possession of the residential premises at Asansol wherefrom the alleged contraband was seized. It is also pointed out that the learned Judge had overlooked the fact that the prosecution failed to establish the exclusive possession of the residential premises at Asansol wherefrom the alleged contraband was seized. It is also stated in the memo of appeal that the learned Judge completely overlooked the fact that the chemical examiner examined the samples by the apparatus which were not functioning properly for which he could not furnish the percentage of composition. It is also stated by the P. W. 1 that when he received the samples, the same were completely decomposed and this casts series shadow of doubts whether the samples examined in the laboratory were really brown sugar or not. Moreover, there was discrepancy as regards the quantity of the samples received by the examiner. ( 3 ) IT is argued by Mr. Gautam Sarkar, learned Advocate appearing for the appellant/convict Ramesh Singh that the provisions of Section 42, 50 and 52c of the N. D. P. S. Act were not followed by the learned Trial Judge and the seizure was made one day after the alleged raid. The learned Advocate for the appellant has drawn our attention to the evidence of the PW 1, the chemical examiner and also to the evidence of the PW. 2. It is pointed out that no seizure was made at Asansol, although, it is alleged that the articles were seized from the appellant Ramesh Singh at Asansol. It is claimed by the learned Advocate for this appellant that there is no proof that the appellant was in exclusive possession of the contraband articles alleged to have been recovered from his possession. It is frankly admitted by the learned Advocate for this appellant that his case does not come within the purview of Section 50 of the Act. It is pointed out by him that there were as many as two reports of the chemical examiner which does not find any justification. It is further argued by him that the provisions of Section 1000) of the Code of Criminal Procedure were violated. As regards the report of the examiner the learned Advocate for the appellant/convict Ramesh Singh has referred to a number of case laws which we shall discuss at the appropriate point of time. ( 4 ) MR. D. K. Sengupta and Mr. As regards the report of the examiner the learned Advocate for the appellant/convict Ramesh Singh has referred to a number of case laws which we shall discuss at the appropriate point of time. ( 4 ) MR. D. K. Sengupta and Mr. Abu Hena, the learned Advocates appearing for the appellant convict Farid Ali have drawn our attention to the evidence of P. W. 2, 5. 6 and 9 and asked us to explore as to whether the provisions of Section 50 of the N. D. P. S. Act had been complied with. As regards the report of the chemical examiner the learned Advocates for this appellant have drawn our attention to the observations made by the learned Trial Judge in his judgment. The learned Advocates for this appellant have also referred to a number of case laws which we shall refer at the relevant point of time. ( 5 ) MR. Himangsnu De and Mr. Kallol Mondal the learned Advocates appearing for the Narcotic Bureau have also referred to a number of case laws in order to counter the arguments of the learned Advocates for the appellants/convicts and the same will be discussed by us later on. ( 6 ) PROSECUTION case in short is that in working out a secret information the officers of the Narcotic Control Bureau, Eastern Zonal Unit, Calcutta went to Sealdah Railway Station being accompanied by the source and Md. Faridali and Safikul were intercepted. On search two polythene packets containing brown sugar weighing about 850 grms. were found from possession of Faridali. Subsequently, Faridali disclosed that the substances were procured from one Ramesh Singh of Asansol and thereafter on the selfsame day Ramesh Singh and another Ramesh Verma Rakesh were apprehended by the officials of the Bureau at the residential premises of Ramesh Singh at Burnpur Road, Court more, Asansol. After a thorough search 3. 8 Kilograms of brown sugar was recovered from the possession of Ramesh Singh and 80 grams of brown sugar was recovered from a motorcycle parked in front of the residence of Ramesh Singh. ( 7 ) AS many as 9 witnesses had been examined by the prosecution. Thus, P. W. 1 was the Assistant Chemical Examiner attached to Calcutta Customs House. ( 7 ) AS many as 9 witnesses had been examined by the prosecution. Thus, P. W. 1 was the Assistant Chemical Examiner attached to Calcutta Customs House. He stated in his evidence that after having examined the samples initially he could not furnish the percentage of composition due to non-functioning of his apparatus and so he had returned the samples. Thereafter, he had examined the samples. The reports have been proved by the P. W. 1 and those were marked as Ext. 1 series. It appears from Ext. 1 series that on examination the samples were found in the form of brown coloured powder and the same responded to the test of heroin (Discetyl Morphine ). It is admitted by him in his cross-examination that the report does not reflect the process and procedure on which the finding was arrived at. It is also admitted by the P. W. 1 that it was mentioned in his reports Nos. 88-89 that the samples were decomposed and pastey. He had explained the situation that previously the substances were powdered and thereafter the same became decomposed and pastey. P. W. 2 was an intelligent officer of the Bureau who had been at the Sealdah Railway Station along with other officials of the Bureau. His evidence stands to support the prosecution case that on being identified by an informer, Faridali and Safikul Islam were apprehended from Sealdah Railway Station. It is also in the evidence of the P. W. 2 that they gave Faridali and Safikul offer if they required to be searched by any Gazetted Officer or by any Magistrate, but they declined and voluntarily produced the articles kept in their possession. Thus, Faridali opened his bag and showed the contents of the bag. There were two packets containing brown coloured substances therein. A portion of the seized article was tested by the apparatus of the P. W. 2 and the same responded positive result. The P. W. 2 thus became sure that the article so seized was brown sugar containing heroin. The article was seized in presence of the independent witnesses who put their respective signatures thereon. The seizure list was prepared by the P. W. 2 (Ext. 2 ). The P. W. 2 thus became sure that the article so seized was brown sugar containing heroin. The article was seized in presence of the independent witnesses who put their respective signatures thereon. The seizure list was prepared by the P. W. 2 (Ext. 2 ). It is admitted by the P. W. 2 in his cross-examination that no written offer as regards the search in presence of the Gazetted Officer or by any Magistrate was given to the accused Faridali. The PW, 2 offered the accused Faridali to search him (P. W. 2) but the accused declined the P. W. 2 stated in his cross-examination. The fact of recovery of the seized article was duly informed to the superior officer of the PW. 2, A suggestion was put to the PW. 2 in his cross-examination that his signature was taken in the seizure list forcibly which was denied. It is admitted by the P. W. 2 in his cross- examination that nothing was found from the possession of Safikul Islam. The P. W. 3 along with other officials of the Bureau conducted the search at the residence of Ramesh Singh and it appears from the evidence that the said search was made in presence of two independent local witnesses when Ramesh Singh was present. Three identical black briefcases having specially made cavities in two of them containing 3. 8 kgs. of brown coloured substance in packets were recovered. The substance was tested by their field testkit which responded positive to the test of heroin. There was a motor cycle in front of the house of Ramesh Singh which Ramesh Singh claimed to be his own anti on search a small packet was recovered from the side box of the motor cycle which contained brown coloured substance. The substance was tested and responded to positive test of heroin, Ramesh Singh admitted that those packets were of heroin. The seizure list was prepared there after having followed all formalities. It appears from his cross-examination that the said search was made under the instruction of the Deputy Director of the Bureau. The substance was tested and responded to positive test of heroin, Ramesh Singh admitted that those packets were of heroin. The seizure list was prepared there after having followed all formalities. It appears from his cross-examination that the said search was made under the instruction of the Deputy Director of the Bureau. A suggestion was put to the P. W. 3 in his cross-examination to the effect that the premises which was searched and the articles which were seized do not belong to the accused Ramesh Singh or that Ramesh Singh did not make any statement before the seizing officials which were denied by the P. W. 3. The P. W. 4 and the P. W. 7 corroborate the, evidence of the P. W. 3. Similarly, the P. Ws. 5 and 6 stand to support the evidence of P. W. 2. ( 8 ) THE learned Advocate for the appellant/convict Ramesh Singh has referred to the ratio decided in the case of State of Bihar v. Kapil Singh. In that case there were a number of circumstances which indicated that it was unsafe to rely on the evidence of the girl, who was a child witness and she might have been coached by the persons who might have influence on her and as such the girl whose statement implicating the accused persons was obtained under the circumstances could not be held to be a reliable witness, particularly in view of the circumstances that she did not disclose the names even at the earlier stage when she had not been put in fear of her life. The Hontble Supreme Court also found that the recoveries could not be held to corroborate the girls version. It was held in that case that failure of the accused to give an adequate explanation would not lead to an inference that the bloodstains must be those of the blood of the deceased and the circumstances seemed to indicate that there was no connection at all between the bloodstains and the murder. The said case was one under Section 302 read with Section 34 of the Indian Penal Code. We do not find any bearing of the ratio decided in that case having applied the facts and circumstances of the instant case before us. The said case was one under Section 302 read with Section 34 of the Indian Penal Code. We do not find any bearing of the ratio decided in that case having applied the facts and circumstances of the instant case before us. ( 9 ) THE learned Advocate for the appellant Ramesh Singh has been referred to the ratio decided in the case of Ahmed v. State of Gujarat, in which it was held that it is always necessary to inform the accused of his right to be searched in compliance with Section 50 of the Act irrespective of the fact whether search is being made by the empowered officer or by an officer duly authorised by the empowered officer under Section 42 of the Act. Although, there is nothing specifically from the evidence of the witnesses in chief that such offer was given to the appellant Ramesh Singh, no question was put to the witnesses from the side of the defence on that point. Besides, the premises of Ramesh Singh was searched on the basis of the information collected from the other coconvict Faridali and in case of Faridali, as it appears from the evidence of the witnesses, such specific offer was given which Faridali declined to accept. At the time of arguments the learned Advocate for the appellant/convict Ramesh Singh submits that he is not pressing his case for non-compliance of the provisions of Section 50 of the Act. In this connection, the learned Advocate appearing for the Bureau has referred to the ratio decided in the case of State of Punjab v. Baldev Singh in which it was held that in view of the provisions of Section 50 of the Act, it is imperative for the investigating officer to inform the suspect orally or in writing about his right to be searched before a Gazetted Officer or a Magistrate and failure to give such information would not vitiate the trial but render the recovery of illicit article illegal and vitiate the conviction and sentence if recorded only on the basis of possession of such illicit article. In the instant case the search and seizure in connection with the appellant Ramesh Singh was made before such seizing officials who were gazetted officers themselves. In the instant case the search and seizure in connection with the appellant Ramesh Singh was made before such seizing officials who were gazetted officers themselves. It was again held in the case of State of Punjab v. Baldev Singh (supra) that on its plain reading, Section 50 of the Act would come into play only in the case of a search of a person as distinguished from the search of any premises etc. It was also held that if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the N. D. P. S. Act is also recovered, the requirements of Section 50 of the Act are not attracted. ( 10 ) THE learned Advocate for the appellant has also referred to the ratio decided in the case of Roy V. D. v. State of Kerala. In the said case the search and seizure were made by an Excise Inspector not authorised under Section 41 and 42 of the N. D. P. S. Act and as such it was held by the Honble Supreme Court that the charge framed on the basis of such alleged search and seizure and recovery of the drug was liable to be quashed. The ratio decided, in the said case materially differs from the instant case, for, in the instant case the search and seizure were conducted and the recovery of the contraband was made at the instance of the officials of the Narcotic Control Bureau. Accordingly, the ratio decided in that case has no application in the instant case. ( 11 ) THE learned Advocate for the appellant/convict Faridali has referred to the ratio decided in the case of State of Punjab v. Balbir Singh, in which it was inter alia held that if arrest or search under Sections 41 (2) and 42 (1) of the N. D. P. S. Act is made by anyone other than such officers as mentioned in those sections, the same would be illegal. It was also held in that case that under Section 41 (2) of the Act only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein and in case of any contravention, that would affect the prosecution case and vitiate the conviction. We have already discussed the situation above in the light of the ratio decided in the case of State of Punjab v. Baldev Singh (supra ). In this connection, it may be mentioned here that the ratio decided in the case of State of Puryab v. Balbir Singh (supra) was referred to and discussed in the case of State of Punjab v. Baldev Singh (supra ). The learned Advocate for the State has also referred to the ratio decided in the case of Mohd. Hussain Farah v. Union of India and Anr. . In the said case the D. R. I. officers entered into a hotel on receiving an information that some accused persons in N. D. P. S. case after having jumped bail took shelter, in that hotel and in course of apprehension of the appellants they recovered some concealed heroin. In such circumstances it was held that as the search was carried out by the officers referred to in Section 41 of the said Act the said officers were not required to comply with the provisions of Section 42 of the Act as the Assistant Director. DRI. was an empowered officer and the said search was carried out in his presence and under his supervision. ( 12 ) THE learned Advocate for the appellant has also referred to the ratio decided in the case of Saiyad Mohd, Saiyad Umar Saiyed and Ors. v. The State of Gujarat, in which the Honble Supreme Court having regard to the object for which the provisions of Section 50 have been introduced into the N. D. P. S. Act and when the language thereof obliges the officer concerned to inform the person to be searched of his right in presence of a Gazetted Officer or a Magistrate it was held that there is no room for drawing a presumption under Section 114, illustration (e) of the Indian Evidence Act. 1872. 1872. It was further held in that case that when the officer concerned has not deposed that he had followed the procedure mandated by Section 50 of the Act, the Court is duty bound to conclude that the accused had not had the benefit of the protection that Section 50 of the Act affords. In the instant case the search and seizure were made at the instance of Gazetted Officer of the Narcotic Control Bureau and the appellant Faridali was offered to be searched as it appears from the evidence of the witness, but the appellant declined. Accordingly, the ratio decided in that case has no application in the instant case before us. Incidentally, it may be mentioned here that the ratio decided in the case of Saiyad Mohd, Saiyad Umar Saiyed and Ors. (supra) had been referred to before the Honble Supreme Court subsequently in the case of State of Punjab v. Baldev Singh (supra ). ( 13 ) AS regards the absence of the disinterested witnesses examined in the instant case the learned Trial Judge appears to have dealt with the same in proper manner and reasons adduced by him find our support. Besides, all the other points raised here in the instant appeals have also been discussed in the judgment of the learned Trial Judge and we do not find anything to interfere with the same. ( 14 ) ACCORDINGLY, the judgment and order of conviction passed by the learned trial Judge are hereby affirmed. Both the appeals are dismissed on contest accordingly. Appeals dismissed.