JUDGMENT: The appellants, three in number, who hereinafter will be referred to as A-1, A-2 and A-3 respectively, were tried before the learned Special Judge (NDPS Act), Chennai, constituted to try the offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, (for short, the ‘Act’), on an allegation that A-1 handed over 2 kgs of heroin to A-2 and A-3 for them to take it to Tirunelveli and that therefore, they committed offences punishable under Secs.8 and 23 read with Secs.27-A, 28 and 29 of the Act. 2. The facts necessary to dispose of the appeal as could be discerned from the oral and documentary evidence, can be briefly summarised as follows: P.W.8 was the Superintendent of Police serving in Narcotic Control Bureau (NCB) during the relevant period. On 5.1.1994, he received an information that in a bus bearing Regn.No.TN-07-A-3999, three persons were transporting heroin. On receipt of such information, he, accompanied by P.W.6 and other police officers went to Tambaram check-post and was waiting for the arrival of the bus. At about 8.00 p.m., when the bus reached the check-post, P.Ws.8 and 6 entered the bus after asking the other officers to guard the bus. On entering the bus, P.W.8 saw two persons standing and they gave their names as Jothi, P.W.10 and Asokan, P.W.7. P.W.8 introduced himself and other officers that they are from NCB and informed them that they intend searching some of the passengers. P.W.8 obtained the register from the conductor of the bus and then proceeded to the seats bearing numbers 15, 16 and 17 to search the persons, who were sitting in thee seats, in view of the information which was already received by them. P.W.8 questioned the persons occupying seat numbers 15, 16 and 17 in the presence of independent witnesses. After introducing himself as the Superintendent of NCB and informing them of the receipt of the information, the accused were apprised of their right under Sec. 50 of the Act that they can be searched either before a Magistrate or a Gazetted Officer. P.W.8 also told them that he is a Gazetted Officer. The accused told P.W.8 that he can conduct the search. A-2 on being questioned, produced a blue colour zip bag and A-3 produced a black colour zip bag. When their bags were searched, it was found that both the bags had pouches concealed at the bottom. P.W.8 also told them that he is a Gazetted Officer. The accused told P.W.8 that he can conduct the search. A-2 on being questioned, produced a blue colour zip bag and A-3 produced a black colour zip bag. When their bags were searched, it was found that both the bags had pouches concealed at the bottom. When the secret pouch was searched, which was in the possession of A-2, two bags each weighing 500 grams of heroin were found. Similarly, the search of the pouch, which was in the possession of A-3 yielded two bags each of them containing 500 grams of heroin. They were weighed and sealed in the presence of witnesses. The signatures of the accused were also obtained on the seized articles. The mahazar, Ex.P-16, was prepared and attested by the witnesses for seizure of the articles. A-1 was questioned by P.W.1 and his statement, Ex.P-1, was recorded by her. The report under Sec. 57 of the Act given by P.W.6 and others were also obtained. P.W.8, in turn, sent his report under Sec. 57 of the Act to his superior which stands marked as Ex.P-25 in the case. The material objects and the accused were brought to the police station and later, the accused were sent for remand. The material objects were sent to the Court with a request to forward them for analysis. The houses of the accused were searched, but nothing incriminating was seized. Ex.P-4 is the house search list in respect of A-1’s house. He also searched the business premises of A-1 and the mahazar is Ex.P-5. After the receipt of the report of the chemical analyst, P.W.8 advised P.W.6 to lay a complaint and accordingly, a complaint was laid. 3. When questioned under Sec. 313, Crl.P.C, all the accused denied the incriminating circumstances appearing against them and A-1 stated that no occurrence as alleged by the prosecution took place on that day and that he did not give any statement to R.W.I. They did not examine any witness on their side. 4. On the evidence adduced, the learned Judge accepted the prosecution version and convicted all the accused under Secs. 8 and 23 read with Secs. 21 and 29 of the Act and sentenced each of them to suffer rigorous imprisonment for a period of ten years and also to pay a fine of Rs. 4. On the evidence adduced, the learned Judge accepted the prosecution version and convicted all the accused under Secs. 8 and 23 read with Secs. 21 and 29 of the Act and sentenced each of them to suffer rigorous imprisonment for a period of ten years and also to pay a fine of Rs. 1,00,000 with a default sentence of rigorous imprisonment for one year. Hence the present appeal. 5. The learned senior counsel appearing for the appellants/accused contends that there is violation of Sec.42 of the Act inasmuch as P.W.8 did not reduce into writing the information received by him about the transporting of the contraband by A-1 to A-3. This contention, in my view, has no legs to stand. Sec.42 contemplates that any such officer, who is superior in rank to a peon, sepoy or constable, of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, by any such officer being an officer superior in rank to a peon, sepoy or any other department of a State Government as is empowered in this behalf by general or special order of the Statement Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset, enter into and search any building or conveyance or place and do other things as contemplated under Sub-secs.(b), (c) and (d) to the Section, provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. 6. 6. The Supreme Court in State of Punjab v. Balbir Singh, A.I.R. 1994 S.C. 1872, held that under Sec.42(1) of the Act, the empowered officer, if has a prior information given by any person, it has to be necessarily taken down in writing and if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials, which may furnish evidence of commission of such offences are concealed in any building etc., he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. The Supreme Court for their held that under the proviso to Sec.42(1), if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief and to that extent, these provisions are mandatory. The above judgment of the Supreme Court is to the extent that Sec. 43 of the Act is not mandatory except for the proviso containing in that Section. 7. The question is whether Sec.42 of the Act applies to the facts of this case. P.W.6 is, admittedly, a Gazetted Officer. Therefore, Sec.43 of the Act will not apply to the facts of this case. 7. The question is whether Sec.42 of the Act applies to the facts of this case. P.W.6 is, admittedly, a Gazetted Officer. Therefore, Sec.43 of the Act will not apply to the facts of this case. If the searching officer is the Gazetted Officer, then only Sec.41(2) of the Act gets attracted since it contemplates that any officer of gazetted rank of the departments of Central Excise, Narcotics Customs, Revenue, Intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under Chapter IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy, or a constable, to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest a person or search a building, conveyance or place. . 8. Sub-sec.(2) to Sec. 41 of the Act specifically deals with the powers of the Gazetted Officer with regard to the search and seizure whereas Sec.42(1) of the Act deals with the powers of an officer, who is other than the Gazetted Officer as is empowered by the central Government or the State Government as the case may be. In this case, as P.W.8 is the Gazetted Officer, he acted only under Sec. 41(2) and not under Sec.42(1) of the Act. Therefore, the contention that P.W.8 did not reduce into writing the information received by him and that it vitiates the trial has to be rejected. Since P.W.8, acted not under Sec.42(1), but under Sec.41(2) of the Act, and it is, accordingly, rejected. 9. Therefore, the contention that P.W.8 did not reduce into writing the information received by him and that it vitiates the trial has to be rejected. Since P.W.8, acted not under Sec.42(1), but under Sec.41(2) of the Act, and it is, accordingly, rejected. 9. The second contention of the learned senior counsel for the appellant is that there is violation of Sec. 50 of the Act in as much as in the mahazar, Ex.P-16, there is no averment that the accused were informed of their right to be searched either before a Magistrate or a Gazetted Officer, which is contradictory to the evidence of P.W.8. The contention also has to fail since there is nothing in Sec. 50 of the Act, which mandates that the officer, who conducts the search, must make an entry in the seizure mahazar that he informed the right of the accused available to him under Sec. 50 of the Act. Therefore, I am unable to accept the contention that because Ex.P-16 does not contain the averments that the accused were informed of the right to be searched before a Magistrate or a Gazetted Officer, the evidence of P.W.8 that he informed the accused of such a right, cannot be accepted. In fact, it is averred in Ex.P-16 that the accused have been told that they can be searched in the presence of a Gazetted Officer. P.W.8 in no uncertain terms gave his evidence and stated that after accosting the accused in the bus and introducing himself as a Gazetted Officer, informed the accused of their right under Sec. 50 of the Act that they can be searched either before a Magistrate or a Gazetted Officer. The accused, thereafter, told him that it is not necessary for the officer to take them to any officer for search and that he can himself search. It is, of course, true that P.W.8 also told that he is a Gazetted Officer. This statement of P.W.8 to the accused that he is a Gazetted Officer was made by him only with a view to introduce himself and not for the purpose of conducing search under Sec. 50 of the Act. I have no reason to disbelieve the evidence of P.W.8 when he has stated that he informed the accused of their right under Sec. 50 of the Act. I have no reason to disbelieve the evidence of P.W.8 when he has stated that he informed the accused of their right under Sec. 50 of the Act. The evidence of P.W.6 that the accused told the police party that they wanted to be searched by a Gazetted Officer is not at variance with P.W.8’s evidence. As stated earlier, P.W.8 actually informed the accused of their right to be searched either before a Magistrate or a Gazetted Officer, and also told them that he is a Gazetted Officer. The accused, thereafter, stated that they need not be taken to a Gazetted Officer and P.W.8 can himself search them and from the said evidence, it cannot be inferred that the accused wanted the search to be conducted in the presence of a Gazetted officer other than P.W.8 and the search and seizure effected by P.W.8 are illegal. The evidence of P.W.8 is clear that the accused were informed of their right after he introduced himself as a Gazetted officer. It is not as if the accused allowed themselves to be searched by P.W.8 because he is a Gazetted Officer, but they declined to exercise the right under Sec. 50 of the Act, though they were apprised of their right and merely because P.W.8 happens to be the Gazetted Officer, this Court cannot come to the conclusion that he conducted the search as a Gazetted Officer in terms of Sec. 50 of the Act. As the accused themselves did not want the search to be conducted in the presence of a Gazetted Officer, the said contention also fails. 10. The learned senior counsel appearing for the appellants/accused contends that even if the entire facts of the case are taken to be true, there is no case against A-1 since nothing was recovered from him. I am unable to accept the said contention. After the arrest of A-1, he was questioned by P.W. 1 and he gave a statement which I have perused. A-1 has stated, after graphically describing the circumstances under which he came into possession of the contraband, that the bags containing heroin, were handed over to A-2 and A-3. The learned senior counsel submits that there is no corroboration for the said statement since it was retracted by him when he was questioned under Sec. 313, Crl.P.C. I do not accept the said contention. The learned senior counsel submits that there is no corroboration for the said statement since it was retracted by him when he was questioned under Sec. 313, Crl.P.C. I do not accept the said contention. It cannot be said that there is no corroboration for the said retracted statement. A-1 was in the company of A-2 and A-3 at the time of seizure as he was travelling along with them in the bus by occupying the adjacent seat. He was questioned at the time of seizure and later brought to the police station. The fact of recovery of 2 kgs of heroin from the two accused, A-2 and A-3, kept in the bags, is itself a corroborative piece of evidence to the statement given by A-1 since A-1 has, in his statement, stated that he received 2 kgs of heroin in two bags and handed them over to A-2 and A-3. The recovery of bags containing heroin of the quantity mentioned in the statement is itself a corroboration. I see no reason to reject the said statement give by A-1 recorded by P.W.1. There is no material to infer that either P.W. 1 or P.W.8 was inimically disposed towards the accused to come out with a false case of foisting 2 kgs of heroin upon them, as the value of 2 kgs of heroin, I am told, is more than Rs.2 crores in the international market: 11. On the evidence I am of the view that the trial Court was justified in convicting and sentencing the appellants/accused as stated earlier. The appeal, therefore, deserves to be dismissed and it is, accordingly dismissed.