Judgment P.N.Yadav, J. 1. This appeal is directed against the judgment and order dated 29.9.2000 passed by Shri Mahesh Prasad Sinha, 10th Additional Sessions Judge. Rohtas at Sasaram in Sasaram (T) P.S. Case No. 634/96 whereby and whereunder he found and hold the appellant Gopal Prasad alias Gopal Prasad Prajapati guilty and convicted him under Sections 379 and 411 of the Indian Penal Code (hereinafter referred to as the Code) as well as under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter called the NDPS Act) and sentenced him to undergo rigorous imprisonment for six months each under Sections 379 and 411 of the Code and rigorous imprisonment for ten years and also to pay a fine of Rupees one lac and in default to undergo rigorous imprisonment for a further period of six months under Section 21 of the NDPS Act, the sentences having been ordered to run concurrently. Co-accused Umesh Chandra Tripathi, who is not the appellant before this Court, has also been convicted under Section 379 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for six months. 2. It may be noted at the very outset that co-accused Umesh Chandra Tripathi is not the appellant before this Court. This appeal has been preferred only by Gopal Prasad alias Gopal Prasad Prajapati. 3. The prosecution case, as unfolded in the FIR and the evidence of the prosecution witnesses is as follows : Informant Heera Sadhu (PW 3) on 21.11.1996 went to the State Bank of India, Kargahar More, Sasaram to withdrew money from Account No. 13122. He withdrew a sum of Rs. 10,000/- from the aforesaid account and he set out for his home with the aforesaid amount of money. He reached near Sher Shah Suri gate for going towards Pani Rouza Road enroute to his house. Just then two young men, one black complexioned (appellant) and another white complexioned (accused Umesh Chandra Tripathi) went near him at about 1.50 p.m. The appellant and his associate were moving around him. The white complexioned man i.e. Umesh Chandra Tripathi cut the bag which the informant was hanging on his shoulder with a blade and the appellant took out the bundle of currency notes worth Rs. 10,000/-. No sooner had the miscreants cut the bag and taken away money then the informant raising alarm of Chor Chor started chasing them. The white complexioned man i.e. Umesh Chandra Tripathi cut the bag which the informant was hanging on his shoulder with a blade and the appellant took out the bundle of currency notes worth Rs. 10,000/-. No sooner had the miscreants cut the bag and taken away money then the informant raising alarm of Chor Chor started chasing them. As Sri Jagdanand Singh Minister was to visit the place, a number of Police Officers and constables were deputed a little away from the place where the informant was robbed of his money. Hearing alarm the police officials also swung into action to apprehend the miscreants. The informant with the help of the police officers succeeded in apprehending the appellant. The Police Officer in presence of two independent witnesses, namely, Dwarika Singh (PW 2) and Bishwanath Singh alias Sadhujee (PW 1) searched the person of the appellant in course of which the bundle of currency notes worth Rs. 10,000/- was recovered and seized from his pocket. The informant identified the bundle of currency notes bearing label of the Bank. From another pocket of the appellant some substance like Heroine kept in 10 small seizure list (Ext. 2) was prepared. The appellant was asked by the Police Officer as to whether he wanted to be searched in presence of some Magistrate or Gazetted Officer but admitting bis guilt, he said that no Magistrate or Gazetted Officer was required to be called to witness the seizure. The appellant after his arrest disclosed his name as well as the name of Umesh Chandra Tripathi who had made good escape. 4. Fardbeyan (Ext. 3) of the informant (PW 3) was recorded at about 2.20 p.m. on 21.11.1996 at Pani Rouza Road near Sher Shah Suri Gate on the basis of which formal FIR (Ext. 1) was drawn up and the instant case was registered. Investigation was entrusted to one Md. Irshad Khan, S.I. of Police (PW 6). He sent samples of substance like Heroine to the Forensic Science Laboratory, Bihar, Patna for analysis and report. After completion of investigation, he submitted charge-sheet against the appellant as well as Umesh Chandra Tripathi. Cognizance was taken by the Sessions Judge-cum-Special Judge and finally the trial commenced. 5. Irshad Khan, S.I. of Police (PW 6). He sent samples of substance like Heroine to the Forensic Science Laboratory, Bihar, Patna for analysis and report. After completion of investigation, he submitted charge-sheet against the appellant as well as Umesh Chandra Tripathi. Cognizance was taken by the Sessions Judge-cum-Special Judge and finally the trial commenced. 5. The appellant was charged under Sections 379/34 and 411 of the Code as well as under Section 21 of the NDPS Act and co-accused Umesh Chandra Tripathi was charged under Section 379/34 of the Code. 6. Accused Umesh Chandra Tripathi entered into defence and he examined his father Durga Dutt Tripathi (DW 1) as defence witness. From the trend of cross-examination of the prosecution witnesses as well as statement of the appellant recorded under Section 313, Cr PC, his defence seemed to be that of total denial and false implication. The specific defence set up by accused Umesh Chandra Tripathi, as gathered from the trend of cross-examination of the prosecution witnesses and the evidence of his father DW 1 as well as his statement under Section 313, Cr PC was that as he was a member of Rashtriya Swayam Sewak Sangh and his father used to criticise the activities of Sasaram Police and he was also fighting a title suit bearing No. 22 of 1992 within the State Government and his father (DW 1) had picked up quarrel and dispute with Sasaram Police, he had been falsely dragged into the case. 7. In order to prove its case, the prosecution examined PW 1 Bishwanath Singh @ Sadhujee, PW 2 Dwarika Singh, PW 3 Heera Sadhu (informant), PW 4 Harain Narain Singh, Officer-in-Charge of Sasaram (T) Police Station, PW 5 Madan Mohan Prasad, ASI of Police and PW 6 Md. Irshad Khan, IO of the case. 8. The learned Additional Sessions Judge after considering the facts, circumstances and evidence brought on record into account found and held the appellant guilty and he convicted and sentenced him as stated above. He also convicted accused Umesh Chandra Tripathi under Section 379 of the Code and sentenced him to undergo rigorous imprisonment for six months vide the impugned judgment and order. 9. Aggrieved by the aforesaid judgment and order of conviction and sentence, the appellant preferred the present appeal. 10. He also convicted accused Umesh Chandra Tripathi under Section 379 of the Code and sentenced him to undergo rigorous imprisonment for six months vide the impugned judgment and order. 9. Aggrieved by the aforesaid judgment and order of conviction and sentence, the appellant preferred the present appeal. 10. The applicant assailed the judgment and order of conviction and sentence passed against him on the ground that it is not based on law and facts and proper and correct appraisal of evidence available on record rather it is based on mere surmises and conjectures. 11. The only point for determination is whether the judgment and order of conviction and sentence recorded against the appellant can be sustained and upheld on the basis of the materials available on the record. 12. Informant Hira Sadhu (PW 3), who felt prey to the miscreants including the appellant supported prosecution case in its entirety by stating on oath that on 21.11.1996 he withdrew a sum of Rs 10,000/- from account No. 13122 standing at the State Bank of India, Kargahar More, Sasaram Branch and he set out for his home with the bundle of currency notes worth Rs. 10000/- with the label of the Bank affixed thereon and when he reached near Sher Shah Suri gate enroute to his house, two miscreants, one black complexioned (appellant) and another white complexioned (Umesh Chandra Tripathi) went to him and they stood by his side and accused Umesh Chandra Tripathi cut his bag containing the aforesaid currency notes and the appellant took out money and both of them started fleeing away. PW 3 added that he raised alarm of Chor Chor and followed the miscreants to apprehend them and as a political leader was to visit the place, the police officers and constables in large number were deployed there and hearing his alarm the police officials swung into action and they also chased the miscreants. The police officers and the informant succeeded in apprehending the appellant while his associate Umesh Chandra Tripathi made good escape. The appellant on being arrested disclosed his name and he also stated that his associate who fled away was Umesh Chandra Tripathi. The police officers and the informant succeeded in apprehending the appellant while his associate Umesh Chandra Tripathi made good escape. The appellant on being arrested disclosed his name and he also stated that his associate who fled away was Umesh Chandra Tripathi. It is in the evidence of PW 3 that the Police Officer asked the appellant as to whether he wanted to be searched in presence of a Magistrate or a Gazetted Officer whereupon he confessing his guilt said that no Magistrate or Gazetted Officer was required to be called to witness the search of his person. Then the Police Officer searched the person of the appellant in course of which currency notes worth Rs. 10,000/- with the label of the Bank affixed thereon was recovered from the right side pocket of his full pant and 10 small paper packets containing Heroine like substance were recovered from his left pocket of his full pant. The money and packets, referred to above, were seized and the seizure list was prepared in presence of two independent witnesses. PW 3 also put his signature Ext. 1/b on the seizure list. He further stated that his statement was recorded at the scene of occurrence itself and the same was read over and explained to him and he put his signature Ext. 1/C thereon. 13. PW 4 Hari Narayan Singh. Officer-in-Charge of Sasaram Town Police Station and PW 5 Madan Mohan Prasad, Assistant Sub-Inspector of Police along with a number of police officers were present in the vicinity of the place of occurrence as Sri Jagdanand Singh, Minister, was to address a meeting in the Town Hall situated there. Both PWs 4 and 5 stated that on hearing the alarm of Chor Chor they also chased the miscreants and after chasing for about 15-20 yards, they caught hold of him and after his apprehension the miscreant disclosed his name, who was none but the appellant. The appellant also,said that the other miscreant, who made good escape, was Umesh Chand Tripathi. Both the witnesses stated that the person of the appellant was searched in course of which the bundle of currency notes worth Rs. 10,000- was recovered and seized from the right pocket of his full pant while 10 packets of Heroine like substance were recovered and seized from the left pocket of his full pant. Both the witnesses stated that the person of the appellant was searched in course of which the bundle of currency notes worth Rs. 10,000- was recovered and seized from the right pocket of his full pant while 10 packets of Heroine like substance were recovered and seized from the left pocket of his full pant. FW 4 stated that before he started search of the person of the appellant he asked from him as to whether he wanted to be searched in presence of some Gazetted Officer or Magistrate whereupon he confessing his guilt said that no Gazetted Officer or Magistrate was required to be called for to witness the search. He got the packets containing Heroine weighed and with the paper packets it was found to be 8 gms., and without paper packets it weighed about 5 gms. PW 4 prepared the seizure list in respect of seizure of currency notes and the packets of Heroine. His signature on the seizure list is Ext. 1/C. The witness also stated that the appellant put his signature Ext. 1/d on the seizure list in his presence. PW 4 recorded the fardbeyan of the informant on which he recorded his endorsement (Ext. 4). The signatures of the witness on the formal FIR and the aforesaid endorsement were Exts. 1/f and 1/g. In his cross-examination he stated that he had conducted 50-60 cases concerning recovery and seizure of Heroine and he was now in a position to identify Heroine at a first glance even though he had not got training therefor. 14. The case was investigated into by PW 6 Md. Irshad Khan. He stated that he took up investigation at 3.30 p.m. on 21.11.1996 after receiving FIR, seizure list and the seized, articles, referred to above. He inspected the place of occurrence and recorded the statements of the witnesses. He transmitted three packets containing Heroine like substance recovered and seized from the possession of the appellant to the Forensic Science Laboratory for analysis and report vide forwarding letter Ext. 1/h. The samples of Heroine referred to above were examined and analysed by the Forensic Science Laboratory and the report Ext. 6 was submitted by the aforesaid Laboratory. PW 6 also proved the report Ext. 7 regarding release of cash worth Rs. 10,000/- to the informant. 15. 1/h. The samples of Heroine referred to above were examined and analysed by the Forensic Science Laboratory and the report Ext. 6 was submitted by the aforesaid Laboratory. PW 6 also proved the report Ext. 7 regarding release of cash worth Rs. 10,000/- to the informant. 15. The evidence of PWs 3, 4 and 5 was quite consistent and corroborative, free from inherent taint and infirmities. The witnesses were cross-examined at length but nothing material going to the root of the case was elicited in their cross-examination. Their evidence abundantly established that the appellant along with his associates cut the bag and removed cash worth Rs. 10,000/- which the informant was carrying with him after withdrawing the same from the Bank and the Appellant was chased and caught hold of and on search of his person the currency notes worth Rs. 10,000/- referred to above and 10 packets containing 5 gms. of Heroine were recovered and seized from his possession. PW 6 got the samples of packets referred to above examined and analysed by the Forensic Science Laboratory. On analysis and examination of samples the Forensic Science Laboratory submitted report Ext. 6 to the effect that all the three paper packets contained Heroine which is a diacetyl derivative of Morphine. It is also recited in the report that the Heroine is a contraband narcotics and is a highly addictive intoxicant. 16. PWs 1 and 2, who were seizure list witnesses and in whose presence the appellant was searched and from his possession recovery of money and Heroine was made turned hostile. They said that no Heroine or cash was recovered and seized from the possession of the appellant in their presence. However, they admitted their signatures Exts. 1 and 1/a on the seizure list. Their attention was drawn to their previous statements recorded under Section 161, Cr PC. They were contradicted by the I.O. PW 6 before whom they testified to search and seizure. The witnesses appeared to have turned hostile towards the truth. 17. However, they admitted their signatures Exts. 1 and 1/a on the seizure list. Their attention was drawn to their previous statements recorded under Section 161, Cr PC. They were contradicted by the I.O. PW 6 before whom they testified to search and seizure. The witnesses appeared to have turned hostile towards the truth. 17. It is contended on behalf of the appellant that the mandatory provision of Section 50 of the NDPS Act was not complied with inasmuch as the search of his person and recovery and seizure from his possession of contraband Narcotics was not made in presence of Magistrate or Gazetted Officer and hence the trial was vitiated in law and he could not be convicted for having been found in possession of contraband Heroine. The contention is non-meritous. 18. Section 50 of the NDPS Act provides that the Officer empowered under Sections 41 or 48 of the Act should comply with the provisions of Sections 50 of the NDPS Act before the search of the person is made and such person should be informed that if he so requires he shall be produced before the Gazetted Officer or a Magistrate. It is obligatory on the part of such Officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires failure to take him to the Gazetted Officer or the Magistrate would amount to non- compliance of Section 50 of the NDPS Act which is mandatory. In the case at hand, the appellant was informed by the Sub-Inspector of Police (PW 4) that if he is so required he might be produced before a Gazetted Officer or a Magistrate before he was searched. Both PWs 3 and 4 stated in their evidence that the appellant was asked as to whether he wanted that a Magistrate or a Gazetted Officer be called for to witness search of his person whereupon he said that no Magistrate or Gazetted Officer was required to be called for nor was he required to be produced before him. Averment to that effect was also made in the FIR. It may also be observed that the appellant was all on a sudden chased and arrested whereafter he was to be searched and he was searched after he was informed of his right to be searched in presence of a Magistrate or a Gazetted Officer. Averment to that effect was also made in the FIR. It may also be observed that the appellant was all on a sudden chased and arrested whereafter he was to be searched and he was searched after he was informed of his right to be searched in presence of a Magistrate or a Gazetted Officer. The mandatory provision of Section 50 of the NDPS Act must, therefore, be said to have been complied with in the present case. 19. The facts, circumstances and evidence discussed above abundantly established that the appellant took out cash worth Rs. 10,000/- from the informants bag after it was cut by his associate and he started fleeing away with the same but he was unfortunately arrested by the police officials and the informant and on search of his person the said money was recovered and seized from his possession which was later on released to the informant. It also stood well proved that 10 small packets containing about 5 gms. of Heroine were also recovered and seized from his possession. Samples of packets said to be containing Heroine was sent to be Forensic Science Laboratory which after examination and analysis found the samples of packets contained Heroine vide report Ext. 6. The appellant thus rendered himself liable under Section 21 of the NDPS Act as well as under Section 379 of the Code. 20. The appellant was convicted under both Sections 379 and 411 of the Code. One and the same person cannot be convicted under both Sections 379 and 411 of the Code for theft of certain thing or article and for recovery and seizure of the same. The appellant took out the money and started fleeing away with the same and soon thereafter he was arrested after a chase and the stolen cash was recovered and seized from his possession. Thus he would be liable for having committed theft of the money and would be convicted only under Section 379 of the Code. The learned trial Court committed illegality by convicting the appellant under both Sections 379 and 411 of the Code. His conviction and sentence under Section 411 of the Code cannot be upheld and the same is set aside and he is acquitted of that charge, while his con- viction under Section 379 of the Code is maintained. 21. The learned trial Court committed illegality by convicting the appellant under both Sections 379 and 411 of the Code. His conviction and sentence under Section 411 of the Code cannot be upheld and the same is set aside and he is acquitted of that charge, while his con- viction under Section 379 of the Code is maintained. 21. As regards conviction and sentence of the appellant under Section 21 of the NDPS Act, it was contended that the sentence of rigorous imprisonment for ten years and a fine of Rs. one lac was exorbitant and excessive and in the interest of justice it was required to be substantially reduced. The contention is non- meritousand the same cannot be accepted. Section 21 of the Act prescribes a minimum sentence of 10 years RI and a fine of rupees one lac and in that view of the matter, I am afraid, this Court cannot reduce the sentence imposed on the appellant on this count. 22. In view of what has been stated and observed in the preceding paragraphs, it is to be held that there is no merit in the appeal which must fail. Accordingly, this appeal is dismissed. The impugned judgment and order of conviction and sentence stands maintained with the modification in conviction and sentence in regard to Section 411 of the Code, as indicative above.