JUDGMENT - P.V. HARDAS, J.:---The appellant has filed the present appeal challenging his conviction and sentence passed by the Special Judge, Narcotic Drugs and Psychotropic Substances Court, Mapusa in Special Criminal Case No. 23 of 1999, sentencing him to undergo rigorous imprisonment for ten years and to pay fine of Rs. 1 lakh, in default to undergo simple imprisonment for one year in respect of an offence punishable under section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985, for the sake of brevity 'N.D.P.S. Act'. On the request of the appellant, this Court, on 14th December, 2000, had appointed Advocate Mr. Ashwin Bhobe from the Legal Aid Scheme to represent the appellant. 2. The brief facts necessary for decision of this appeal are set out hereunder :- On 24th October, 1999 at 12.00 hours P.W. 4 P.S.I. Uday Naik attached to the Anti Narcotic Cell, Panaji, received a special and reliable information that one person from Kerala named Tommy Thomas, aged about 30 years, medium built, having a beard was selling charas at Tiwaivaddo, Calangute, near the house of one Silveira. P.W. 4 P.S.I. Uday reduced the said information to writing and a copy of the same was delivered to Deputy Superintendent of Police P.W. 6 Apa Kashiram Teli. The said information is at Exhibit P.W. 4/D Colly. P.W. 4 P.S.I. Uday thereafter secured the presence of two panchas, P.W. 3 Nitin Prabhakar Dhond and another panch and apprised them about the information received by him. The panch witnesses were then introduced to the members of the raiding party which consisted of P.W. 6 Deputy Superintendent of Police Teli, P.W. 5 P.I. Lavhu Mamledar, Head Constable Sheikh Sallia, T.T. Naik and Police Constables Harinam Naik, Sadashiv Shetye and Sandeep Shirvaikar. The raiding party then proceeded in a police jeep No. GGE-8 and on a private motorcycle No. GDN-4971 to Tiwaivaddo, Calangute at about 1.40 p.m. P.W. 4 P.S.I. Uday was carrying the official seal of the Anti Narcotic Coll, Panaji, Goa 2 and Head Constable T.T. Naik was carrying the kit box containing weighing scale, packing and sealing material. The raiding party reached Tiwaivaddo at 14.15 hours. The raiding party reached Tiwaivaddo at 14.15 hours. P.W. 4 P.S.I. Uday inquired from a local person about the location of the house of Silveria and the raiding party then went on foot and reached the house of Silveira at about 2.40 p.m. There the raiding party saw one person searching for some thing in the bushes. Since his description matched with the description which had been received by P.W. 4 P.S.I. Uday, the members of the raiding party immediately rushed and surrounded him. P.W. 4 P.S.I. Uday identified himself and told the said person that he had received specific and reliable information that the said person was selling charas and that P.W. 4 P.S.I. Uday wanted to take his personal search. The said person was questioned regarding his name and he disclosed his name as Tommy Thomas. P.W. 4 P.S.I. Uday then apprised the said Tommy Thomas regarding his right to get himself searched in the presence of either a Gazetted Officer or a Magistrate and also that he had the right to get the members of the raiding party searched, but, he declined to exercise his right. Thereafter P.W. 4 P.S.I. Uday took the personal search of Tommy Thomas and in the right side pocket of the jean which he was wearing one polythene bag containing some blackish coloured substance was found. The said blackish coloured substance was in small pieces numbering 45 and was suspected to be charas. It was weighed and the weight was confirmed at 220 gms. The said substance was then put in an envelope, packed and sealed with the seal of the Anti Narcotic Cell, Panaji, Goa 2. The envelope was also signed by P.W. 4 P.S.I. Uday, P.W. 3 Nitin, the panch witness as well as the said Tommy Thomas. In the left hand pocket of the jeans P.W. 4 P.S.I. Uday found two currency notes of Rs. 100/- each which were returned to the said Tommy Thomas. The search of the bushes was undertaken and a polythene bag containing blackish coloured substances suspected to be charas was found. It was weighed and the weight was confirmed at 850 gms. This polythene bag was again sealed and the same procedure was followed. 100/- each which were returned to the said Tommy Thomas. The search of the bushes was undertaken and a polythene bag containing blackish coloured substances suspected to be charas was found. It was weighed and the weight was confirmed at 850 gms. This polythene bag was again sealed and the same procedure was followed. The accused was questioned and he had stated that the bag was kept at that place by one local person, whose name he was not knowing but would be in a position to identify him. On questioning Tommy Thomas was unable to produce any documents to justify his possession of charas and, therefore, P.W. 4 P.S.I. Uday informed him that he had committed an offence of possessing charas without valid document and he was taken into custody. The value of the charas weighing 220 gms. was estimated at Rs. 22,000/- and the value of the charas weighing 850 gms. was estimated at Rs. 85,000/-. The accused was apprised regarding his right to search the members of the raiding party but the accused Tommy Thomas declined the offer. A panchanama of the above events was recorded and the same is at Exhibit P.W. 3/A. The seizure report of the charas is at Exhibit P.W. 3/B. 3. P.W. 4 P.S.I. Uday thereafter on reaching the Anti Narcotic Cell, Panaji, lodged a complaint which is at Exhibit P.W. 4/A and forwarded intimation under section 57 of the N.D.P.S. Act which is At Exhibit P.W. 4/C. The sealed parcels were examined by P.W. 1 Mahesh Kaissare, who was working as the Junior Scientific Officer in the Directorate of Food and Drugs Administration, Panaji, Goa. Prior to that the said P.W. 1 Mahesh was working as a Chemist in the said office since 1983 and had carried out more than 500 tests on various types of Narcotic Drugs and had also deposed in numerous cases under the N.D.P.S. Act. P.W. 1 Mahesh had received the samples for analysis accompanied by a covering letter Exhibit P.W. 1/A. and a reference letter Exhibit P.W. 1/B. He had tallied the sealed impressions and found them to be correct. He had conducted the tests to determine whether the sample was charas and after performing the various tests, he forwarded a report of his analysis at Exhibit P.W. 1/C that the two samples received by him contained charas. He had conducted the tests to determine whether the sample was charas and after performing the various tests, he forwarded a report of his analysis at Exhibit P.W. 1/C that the two samples received by him contained charas. The remaining quantity of the samples was resealed by him and sent to the Anti Narcotic Cell. P.W. 2 Manohar D. Joshi, who was working as a Scientific Assistant in the Crime Branch C.I.D., Panaji, had received the samples from the Anti Narcotic Cell, Panaji alongwith the specimen seal impression and the letter and had kept the two sealed covers in a cupboard under lock and key. He had received the examination report and the balance quantity of charas from the laboratory and had forwarded the same to P.I. Anti Narcotic Cell, Panaji. 4. The learned trial Court framed a charge against the appellant vide Exhibit 3 in respect of an offence punishable under section 20(b)(ii) of the N.D.P.S. Act. The appellant denied his guilt and claimed to be tried. During the trial the prosecution examined in all 6 witnesses in support of its case. The trial Court found the appellant guilty for an offence under the aforesaid section and had sentenced him to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 1 lakh, in default to undergo further simple imprisonment for 6 months. It is this conviction and sentence which is challenged by the appellant in the present appeal. 5. I have heard the learned Counsel Mr. Bhobe, who has been appointed as a Counsel to represent the appellant and who has very ably argued the appeal. According to the learned Counsel for the appellant, there is a breach of the provisions of section 42(2) of the N.D.P.S. Act. The learned Counsel submitted that section 42(2) of the N.D.P.S. Act contemplates that on receipt of the secret information, the officer is required to reduce the said information into writing and send it to his immediate superior officer. According to Mr. Bhobe the learned Counsel for the appellant, P.W. 4 P.S.I. Uday had recorded the said information and his immediate superior officer was P.W. 5 P.I. Mamledar. However, there is no evidence on record to suggest that the said information, Exhibit P.W. 4/D Colly was sent to P.W. 5 P.I. Mamledar. According to Mr. Bhobe the learned Counsel for the appellant, P.W. 4 P.S.I. Uday had recorded the said information and his immediate superior officer was P.W. 5 P.I. Mamledar. However, there is no evidence on record to suggest that the said information, Exhibit P.W. 4/D Colly was sent to P.W. 5 P.I. Mamledar. Instead it appears, according to the learned Counsel for the appellant, that this said information was sent to P.W. 6 Deputy Superintendent of Police Teli. Thus, according to him, there is a total non-compliance of section 42(2), which was vitiated the trial and consequently the conviction. 6. Mr. Lawande, the learned Public Prosecutor appearing for the respondent State, has submitted that section 42(2) would not apply where the search is carried out in the open. In support of his contention he has placed reliance on the judgment of the Supreme Court in (Sayar Puri v. State of Rajasthan)1, A.I.R. 1998 S.C. 3224 and of the Division Bench of this Court in (Longuram Tariram Thakur and another v. State of Maharashtra)2, 2000(Supp.) Bom.C.R. 128. The Supreme Court in Sayar Puri case (supra) has held :- "The contention raised on behalf of the appellant is that no site plan was prepared by the police to prove that the place where the appellant was found sitting was a part of the public road. In our opinion this contention is misconceived. The Police Officers who were examined in this case and also the panch witnesses have stated that the accused was found sitting on a bench on the Mandia Road. Thus the accused was found sitting on a public road and, therefore, neither the procedure under section 42(2) of the Act was required to be followed nor the site plan was required to be prepared." 7. Similarly in Longuram Tariram Thakur case (supra) the Division Bench held: "If officer as referred to in section 42(1) receives information in respect of any offence committed in public place or in an open place or in a place which is not in any building, conveyance or enclosed place is not required to reduce the information received by him. He is required to reduce such information only in case the information relates to any search to be taken in any building, conveyance or enclosed place." 8. He is required to reduce such information only in case the information relates to any search to be taken in any building, conveyance or enclosed place." 8. It is clear from the aforesaid two authorities that in the present case compliance of section 42(2) was not at all necessary. However, by virtue of Exhibit P.W. 4/D Colly., the prosecution had led evidence to show that section 42(2) of the N.D.P.S. Act was complied with. No prejudice would be caused to the accused if the information is sent not to the immediate superior officer but to an officer who is higher in the hierarchy than the immediate superior officer. Be that as it may, I am not called upon to decide the question whether there was a breach in following the procedure laid down in section 42(2) of the N.D.P.S. Act in view of the fact that it was not mandatory for P.W. 4 P.S.I. Uday to have complied with section 42(2) of the N.D.P.S. Act. 9. The next submission of Mr. Bhobe, the learned Counsel appearing for the appellant, is that there is a total non-compliance of section 50 of the N.D.P.S. Act. Mr. Bhobe has invited my attention to the evidence of P.W. 3 Nitin the panch witness, who stated :- "The P.S.I. then gave the acc. offer to search the members of raiding party including the panchas but the acc. declined the offer. He was given the offer for search in the presence of a Gazetted Officer or a Magistrate but the acc. also declined the offer." He also invited my attention to the evidence of P.W. 6 Deputy Superintendent of Police Teli who stated :- "The acc. was surrounded and given offer to search in the presence of Gazetted Officer or a Magistrate and that he has got right to search the members of raiding party but he declined both the offers." 10. On the basis of the evidence of these two witnesses it is contended before me that the appellant was only offered that he could get himself searched in the presence of either a Magistrate or a Gazetted Officer. According to the learned Counsel, the appellant was not apprised of his 'right' of search by a Gazetted Officer or a Magistrate. However, Mr. According to the learned Counsel, the appellant was not apprised of his 'right' of search by a Gazetted Officer or a Magistrate. However, Mr. Bhobe, the learned Counsel for the appellant, was quick to concede that P.W. 4 P.S.I. Uday had no doubt stated in his evidence that the appellant was apprised of his right of getting searched before a Gazetted Officer or a Magistrate and also he had the right to get the members of the raiding party searched. So, according to the learned Counsel for the appellant, in view of the contradictory evidence, there was no compliance of section 50 of the N.D.P.S. Act and, therefore, according to him, though the trial is not vitiated, the conviction of the appellant cannot be sustained as the seizure of the contraband itself becomes doubtful or suspect. Mr. Bhobe the learned Counsel appearing for the appellant, has placed reliance on the judgment in (Krishan Mohar Singh Dugal v. State of Goa)3, 2000 Cri.L.J. 18. 11. Mr. Lawande, the learned Public Prosecutor for the State, has also placed reliance on Krishna Mohar Singh Dugal v. State of Goa, 2000 Cri. L.J. 18. 12. Mr. Mr. Bhobe the learned Counsel appearing for the appellant, has placed reliance on the judgment in (Krishan Mohar Singh Dugal v. State of Goa)3, 2000 Cri.L.J. 18. 11. Mr. Lawande, the learned Public Prosecutor for the State, has also placed reliance on Krishna Mohar Singh Dugal v. State of Goa, 2000 Cri. L.J. 18. 12. Mr. Bhobe, the learned Counsel appearing on behalf of the appellant, while submitting that there was no compliance of section 50 of the N.D.P.S. Act has also placed reliance on the decision of the Supreme Court in (K. Mohanan v. State of Kerala)4, 2000(10) S.C.C. 222 wherein it was held :- "Before subjecting a person to search, the officer concerned must inform him of his right to be searched before a Gazetted Officer or a Magistrate and failure to do so would cause prejudice to such person-Where before conducting the search the Police Officer concerned merely asking the accused-appellant whether he was required to be produced before a Gazetted Officer or a Magistrate for the purpose of the search but not informing him about his right in that behalf under the law, held, mandatory requirement of section 50 not satisfied-If he had been told about his right, what would have been the answer given by the accused cannot be gauged at this distance of time-This is particularly so when the main defence adopted by the appellant at all stages was that section 50 of the Act was not complied with-In view of non-compliance with section 50, the evidence of search spoken to by the Police Officer who had conducted the search cannot be acted upon in the absence of any other independent evidence to show that the appellant was in possession of the contraband article." He has also placed reliance on the judgment of the Supreme Court in (State of Punjab v. Baldev Singh etc.etc.)5, 2000(5) Bom.C.R. (S.C.)236 wherein it was held :- "When an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under sub-section (1) of section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing, the failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused. A search made, by an empowered officer, on prior information, without, informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of section 50 of the Act." 13. In the present case undoubtedly P.W. 3 Nitin and P.W. 6 Deputy Superintendent of Police Teli only speak of an 'offer' being made to the appellant regarding the search before a Magistrate or a Gazetted Officer and do not refer to the fact that P.W. 4 P.S.I. Uday had apprised the appellant regarding his right under section 50 of the N.D.P.S. Act. P.W. 4 P.S.I. Uday has clearly stated that he had apprised the appellant regarding his right and he is corroborated by the recitals in the panchanama Exhibit P.W. 3/A as also his complaint, which is at Exhibit P.W. 4/A. 14. Mr. Lawande, the learned Public Prosecutor for the State, while placing reliance on the judgment of the Supreme Court in (Pon Adithan v. Deputy Director, Narcotics Control Bureau, Madras)6, A.I.R. 1999 S.C. 2355 has submitted that as held by the Supreme Court the oral evidence of the Intelligence Officer who had conducted search can be regarded as sufficient for establishing compliance with requirement of section 50(1). Therefore, according to him, there is sufficient compliance of section 50 of the N.D.P.S. Act. Mr. Therefore, according to him, there is sufficient compliance of section 50 of the N.D.P.S. Act. Mr. Lawande also placed reliance in Longuram Tariram Thakur case (supra) wherein the Division Bench of this Court had held :- "Accused found in possession of suitcases containing charas-Before taking search the accused were informed about the object of the search and they were also asked whether they wanted their search to be taken by or before the Gazetted Officer or a Magistrate and the accused declined to accept the offer. This is sufficient compliance of section 50 of Narcotic Drugs and Psychotropic Substances Act. Merely because the investigating officer had not used the word 'right' in his communication to the accused, it cannot be said that there was non-compliance of section 50." 15. In view of the authorities cited before me, I am in agreement with Mr. Lawande when he submits that section 50 has been complied with as the officer, that is, P.W. 4 P.S.I. Uday, who had searched and arrested the accused had apprised him regarding his right of being searched in the presence of either the Magistrate or a Gazetted Officer. Merely because P.W. 3 Nitin and P.W. 6 Deputy Superintendent of Police Teli say that an 'offer' was made to the appellant/accused, that would not detract from the evidence of P.W. 4 P.S.I. Uday when he said that the appellant was apprised about his right. P.W. 4 P.S.I. Uday is amply corroborated by the panchanama at Exhibit P.W. 3/A and the complaint at Exhibit P.W. 4/A that the appellant was apprised of his right under section 50 of the N.D.P.S. Act. I do not find that this is a case of non-compliance of section 50 and as such, the submissions of the learned Counsel for the appellant are devoid of merit. 16. The learned Counsel for the appellant has next submitted that P.W. 1 Mahesh, who had analysed the sample, was not competent in law to carry out the analysis and, therefore, the report that what was seized from the accused was charas was inadmissible in evidence and, consequently, the conviction is vitiated. In support of his contention he has invited my attention to the Goa, Daman and Diu Narcotic Drugs and Psychotropic Substances Rules, 1987. In support of his contention he has invited my attention to the Goa, Daman and Diu Narcotic Drugs and Psychotropic Substances Rules, 1987. Rule 2(c) defines who is a 'Chemical Analyser' as under :- "'Chemical Analyser' means the Chief Medical Officer, Public Health Laboratory, Directorate of Health Services, Panaji, Goa and includes any officer authorised by him in this behalf or any officer not below the rank of Junior Scientific Officer attached to the Office of Drugs Controller, Directorate of Health Services, Panaji, Goa, and appointed for this purpose." Rule 2(d) refers to the Drugs Controller and it reads as under :- "'Drugs Controller' means the Drugs Controller, Office of the Drugs Controller, Government of Goa, Daman and Diu, appointed under the provisions of Rule 50 of the Drugs and Cosmetics Rules, 1945." Therefore on the basis of these Rules it is submitted that P.W. 1 Mahesh was not a Junior Scientific Officer working or attached to the office of the Drugs Controller. The learned Public Prosecutor for the State, Mr. Lawande has submitted that P.W. 1 stated that he was working as Junior Scientific Officer in the Directorate of Food and Drugs Administration, Panaji, Goa. P.W. 1 Mahesh has also stated that he has carried out more than 500 tests and has deposed in many other Narcotic cases. Mr. Lawande submits that there is no challenge in the cross-examination to the effect that P.W. 1 Mahesh was not competent to analyse the samples. According to the learned Public Prosecutor for the State, the Directorate of Food and Drugs Administration is working under the Drugs Controller. It is seen from the cross-examination that there is no challenge to the evidence of P.W. 1 Mahesh that he was incompetent to analyse the samples. On question being put to him, he would have clarified that he was working as a Junior Scientific Officer in the Directorate of Food and Drugs Administration under the Drugs Controller. In the absence of any material in the cross-examination it would be extremely hazardous to arrive at finding that P.W. 1 Mahesh was incompetent to analyse the samples. 17. The learned Counsel for the appellant has lastly submitted that the recovery of 850 grams of charas from the bushes is extremely doubtful. According to him, it cannot be urged by the prosecution that the appellant was in conscious possession of the said 850 grams of charas. 17. The learned Counsel for the appellant has lastly submitted that the recovery of 850 grams of charas from the bushes is extremely doubtful. According to him, it cannot be urged by the prosecution that the appellant was in conscious possession of the said 850 grams of charas. The learned Public Prosecutor for the respondent State has pointed out that when the accused was first seen by the raiding party he was searching for something in the bushes. After his personal search in which 220 grams of charas was found, the Investigating Officer searched the bushes and found a polythene bag containing charas weighing 850 grams. It is to be noted here that the appellant was searching for something in the bushes. On search of the bushes by the Investigating Officer, charas weighing 850 grams was found. The reason why the Investigating Officer had searched in the bushes was because of the conduct of the appellant in searching for something in the bushes. Thus, a link has been established by the prosecution in respect of the polythene bag which was found in the bushes containing 850 grams of charas. The appellant can be said to be in conscious possession of the polythene bag found in the bushes. Thus there is no substance in the contention of the learned Counsel for the appellant that the 850 grams of charas was not in the possession of the appellant. 18. After having given my anxious considerations to the rival contentions advanced by the parties, I am of the opinion that there is no merit in the appeal and the same deserves to be dismissed. 19. The appeal is, therefore, dismissed. The conviction and sentence passed by the Special Judge, N.D.P.S. Court, Mapusa in Special Criminal Case No. 23 of 1999 is, hereby, confirmed. Since the appellant is in jail, a copy of the judgment be sent to the appellant in jail. Appeal dismissed. -----