J. M. PANCHAL, J. ( 1 ) THIS appeal, which is filed under Sec. 374 (2) of the Code of criminal Procedure, 1973, is directed against the judgment and order dated december 21, 2001, rendered by the learned Additional City Sessions Judge. Court no. 7. Ahmedabad City, in Sessions Case No. 115/2001, by which the appellant is convicted under Sec. 17 and Sec. 18 of the Narcotic Drugs and Psychotropic Substances act, 1985 ("the NDPS Act" for short) and punished with R. I. for 10 years and fine of rs. 1,00,000/- (Rupees One Lac) i/d. R. I. for one year for the offence punishable under Sec. 17 of the NDPS Act as well as R. I. for 10 years and fine of Rs. 1,00,000/- (Rupees One lac) i/d. R. I. for one year for the offence punishable under Sec. 18 of the NDPS Act. We may state that learned Judge has not directed that the punishments imposed on the appellant shall run concurrently and, therefore, in view of the provisions of Sec. 31 of the Code of Criminal Procedure, 1973, the effect of imposition of punishment of imprisonment is that the punishments consisting of imprisonment will commence one after the expiration of the other. ( 2 ) ON June 10, 2001, informer of police constable Himatsinh Lalubha Gohil, who was then serving as police constable, Detection of Crime Branch, Ahmedabad, had informed the police constable that one Raghubhai Bharvad was to pass through Thaltej cross Roads on June 10, 2001 between 13. 00 hours and 14. 30 hours with opium, and was to come from Sarkhej side for going towards Ghatlodia. On receiving this information, police constable Himatsinh Lalubha Gohil had conveyed the information to Mr. R. C. Pathak, who was then Police Inspector, Detection of Crime Branch. On receipt of information from police constable Himatsinh. Police Inspector had called two panch witnesses through head constable Bhimji Amarsinh. Necessary information was given to the panch witnesses on their arrival at the Police Station by P. I. Mr. Pathak. P. I. Mr. Pathak had also made necessary entry in the station diary maintained at the police Station and informed the higher officers about the information received. At about 12. 30 noon, the raiding party consisting of police personnel and panch witnesses, had gone to Thaltej Cross Roads in a Government Vehicle and maintained a watch there. Pathak. P. I. Mr. Pathak had also made necessary entry in the station diary maintained at the police Station and informed the higher officers about the information received. At about 12. 30 noon, the raiding party consisting of police personnel and panch witnesses, had gone to Thaltej Cross Roads in a Government Vehicle and maintained a watch there. The Police Inspector had also carried with him a kit containing certain articles like boxes etc. , necessary for conducting a raid. At about 13-35 hours, a person who had put on the dress of a shepherd and whose description was given by the informer, was sighted with an embroidered bag in his hand by police constable Himatsinh. On noticing the said person, head constable Himatsinh had given signal to P. I. Mr. Pathak and thereupon the raiding party was alerted. When the appellant came near Thaltej cross Roads, he was stopped by P. I. Mr. Pathak and informed that he was required to be searched, as an information had been received that he was possessing opium. P. I. Mr. Pathak had thereafter given option to the appellant that, if he so desired, he could be taken to the Gazetted Officer or the Magistrate for the purpose of search, but the appellant had not exercised the said option saying that he had full faith in him. Thereupon the bag, which was carried by the appellant, was searched from-where a cotton dhoti was found. On unrolling the dhoti, a transparent plastic bag was found, wherein a soft black substance like opium was kept. A rexine wallet containing Rs. 1160/- was also found. After opening the plastic bag, the panchas were requested to see and smell the soft black -substance which was kept in the plastic bag. On seeing and smelling, the panch witnesses as well as others had identified the said substance as opium. Head constable Jayendrasinh was sent in the Government vehicle to bring an expert from Forensic Science Laboratory ("f. S. L. " for short) on the spot. Meanwhile, p. I. Mr. Pathak had directed police constable Himatsinh to bring a businessman for the purpose of weighing the substance found and, therefore, Himatsinh had gone to village thaltej and brought with him Bharatbhai Rupabhai Od. Who is having a grocery shop at Thaltej village, for the purpose of weighing the substance found in the plastic bag. Mr. Meanwhile, p. I. Mr. Pathak had directed police constable Himatsinh to bring a businessman for the purpose of weighing the substance found and, therefore, Himatsinh had gone to village thaltej and brought with him Bharatbhai Rupabhai Od. Who is having a grocery shop at Thaltej village, for the purpose of weighing the substance found in the plastic bag. Mr. Bharatbhai Od had brought with him the scales and after arrival at the spot, he had weighed the substance, weight of which was found to be 340 grams. Thereafter the expert from F. S. L. had also come on the spot and taken 2 grams out of 340 grams for the purpose of preliminary examination, of the substance. On preliminary examination, it was found by the expert of F. S. L. that it was a psychotropic substance. Therefore, he had suggested to the investigating officer to prepare a sample of 25 grams and send the same to F. S. L. for analysis. Accordingly, sample of 25 grams was prepared and placed in a plastic box which was brought by P. I. Mr. Pathak, with him from the police station. After obtaining signatures of the panchas on slips, the plastic box was sealed with sealing wax, whereas rest of the quantity found was placed in another box, which was also sealed with sealing wax after obtaining signatures of the panch witnesses on slips and tied with twine. The first sample containing 25 grams was marked as Mark a, whereas the second was marked as Mark b. The appellant was called upon to produce pass or permit authorising him to possess opium, but the appellant could not produce the same. Thereafter the second part of the panchnama was completed on the spot and signatures of the panch witnesses were obtained thereon. The Police Inspector had also prepared the complaint at the spot. Thereafter the raiding party had returned with the appellant to the Police Station and the muddamal articles seized as well as the appellant were handed over to head constable Ganpatsinh Samatsinh Chauhan, who was then police officer incharge of the police station. The said police constable had registered the complaint given by Mr. Pathak and the appellant was arrested. Thereafter the raiding party had returned with the appellant to the Police Station and the muddamal articles seized as well as the appellant were handed over to head constable Ganpatsinh Samatsinh Chauhan, who was then police officer incharge of the police station. The said police constable had registered the complaint given by Mr. Pathak and the appellant was arrested. The police constable ganpatsinh Chauhan had kept the sample in his custody and on the next day, he had handed over the same to the crime writer head Rumalji Shivaji for the purpose of sending the same to F. S. L. A. S. I. Mr. P. A. Jhala, who was then serving in Crime branch, Ahmedabad, had obtained necessary form from the Office of Commissioner of police for sending the muddamal to F. S. L. and after obtaining the form. The particulars required were filled in and thereafter the sealed packet was handed over to crime writer head Rumalji for taking it to the forensic science laboratory. Crime Writer Head rumalji had brought the sample to F. S. L. Where the sample was analysed. The report of the analysis indicated that the substance analysed was opium as defined in the NDPS act. Further investigation into the case was carried out by Mr. R. B. Joshi, who was then P. S. I, at Detection of Crime Branch Ahmedabad as well as by Mr. B. C. Joshi, who was then P. S. I, at City Crime Branch Office. On receipt of report and completion of the investigation, the appellant was charge-sheeted for the offences punishable under Sees. 17 and 18 of the NDPS Act in the City Sessions Court, Ahmedabad. ( 3 ) THE learned Judge had framed charge at Exh. 2 against the appellant of the offences punishable under Secs. 17 and 18 of the NDPS Act. The charge was read over and explained to the appellant, who had pleaded not guilty to the same and claimed to be tried. Therefore, the prosecution had examined, (1) Rajendrakumar Chunilal Pathak, pw. 1 Exh. 8. (2) Bharatbhai Rupabhai Od, PW. 2 Exh. 22, (3) Imamsha Chandsha diwan, PW. 3 Exh. 23, (4) Rajaqbhai Chandbhai Belim, PW. 4 Exh. 24, (5) Himatsinh lalubha Gohil, PW. 5 Exh. 26, (6) Ganpatsinh Samatsinh Chauhan, PW. 6 Exh. 27, (7) rumalji Shivaji PW. 7 Exh. 30, (8) Pravinsinh Abhesinh Jhala, PW. 9 Exh. 1 Exh. 8. (2) Bharatbhai Rupabhai Od, PW. 2 Exh. 22, (3) Imamsha Chandsha diwan, PW. 3 Exh. 23, (4) Rajaqbhai Chandbhai Belim, PW. 4 Exh. 24, (5) Himatsinh lalubha Gohil, PW. 5 Exh. 26, (6) Ganpatsinh Samatsinh Chauhan, PW. 6 Exh. 27, (7) rumalji Shivaji PW. 7 Exh. 30, (8) Pravinsinh Abhesinh Jhala, PW. 9 Exh. 32, (9) rameshkumar Bhavanishanker Joshi, PW. 9 Exh. 34, and (10) Bhanushanker chhaganlal Joshi, PW. 10 Exh. 35, to prove its case against the appellant. The prosecution had also produced documentary evidence, such as, the entry made in the station diary maintained at the police station regarding information received at Exh. 9, the report made by the Police Inspector to the Assistant Commissioner of Police regarding the information received from police constable Himatsinh at Exh. 10, the report prepared by P. I. Mr, Pathak indicating compliance of Sec. 50 at Exh. 11, intimation sent by the Police Inspector to the expert of F. S. L. that he should come to the spot for the purpose of preliminary examination of the substance found at Exh. 30, the report of the preliminary examination of the substance by the expert of F. S. L. at Exh. 14, memorandum enumerating the articles which were seized on the spot at Exh. 15, the grounds of arrest conveyed to the appellant at Exh. 16, the information given to the brother of the appellant regarding arrest of the appellant under the NDPS Act at Exh. 17, the arrest memo at Exh. 18, the information given by P. I. Mr. Pathak to the District magistrate, Ahmedabad City under Sec. 58 of the Code of Criminal Procedure at Exh. 19, the complaint filed by Mr. Pathak at Exh. 20, the memorandum dated June 10, 2001 prepared and given by Mr. Pathak to the officer incharge of D. C. B. while handing over the articles seized for safe custody at Exh. 21, the panchnama prepared in the case Exh. 25, entry made by police constable Ganpatsinh Chauhan in the police station diary regarding the opium having been found from the possession of the appellant and also directing him to inform higher officers about the seizure at Exh. 28, entry made by police constable Ganpatsinh Chauhan in the station diary mentioning the articles seized during the course of raid at Exh. 29, muddamal forwarding letter sent to F. S. L. at Exh. 28, entry made by police constable Ganpatsinh Chauhan in the station diary mentioning the articles seized during the course of raid at Exh. 29, muddamal forwarding letter sent to F. S. L. at Exh. 33, intimation received by P. S. I. DCB Crime Branch from F. S. L. indicating the receipt of sample for analysis at Exh. 36, forwarding letter dated June 22, 2001 with which the report of F. S. L. was sent at Exh. 37, production report of the appellant before the learned Metropolitan Magistrate, Court No. 11, Ahmedabad city dated June 11, 2001 at exh. 39 etc. , in support of its case against the appellant. After recording of evidence of the prosecution witnesses was over, the learned Judge had explained to the appellant the circumstances appearing against him in the evidence of the prosecution witnesses and recorded his further statement as required by Sec. 313 of the Code of Criminal procedure, 1973. In his further statement, the appellant had denied the case of the prosecution, but had not led any evidence in support of his defence that the case of the prosecution was false. However, the appellant had submitted written statement contemplated by Sec. 233 (2) of the Code of Criminal Procedure, 1973 and claimed that he was falsely implicated in the case and, therefore, should be acquitted. ( 4 ) ON appreciation of evidence adduced by the prosecution, the learned Judge held that it was proved by the prosecution beyond reasonable doubt that the appellant was found in possession of 340 grams of opium near Thaltej Cross Roads and that he had committed offences punishable under Sec. 17 as well as Sec. 18 of the NDPS Act. The learned Judge concluded that it was proved by the prosecution that mandatory provisions contained in Secs. 50, 42 (1), (2) and 52 (1) of the NDPS Act were complied with and that the appellant could not satisfy the Court that breach of the mandatory provisions of the NDPS Act was committed by the prosecution. After holding that the appellant had committed offences punishable under Secs. 17 and 18 of the NDPS Act, the appellant was heard regarding punishment as required by Sec. 235 (2) of the Code of criminal Procedure. After holding that the appellant had committed offences punishable under Secs. 17 and 18 of the NDPS Act, the appellant was heard regarding punishment as required by Sec. 235 (2) of the Code of criminal Procedure. It was pleaded by the appellant that he was aged about 60 years and was poor person and as his wife had expired on November 7,2001 and as muddamal found from his possession was of small quantity, the minimum punishment should be imposed on him. The learned Judge had thereafter punished the appellant as mentioned earlier by judgment dated December 21, 2001, giving rise to the present appeal. ( 5 ) THE appeal was notified for admission hearing before the Court on January 15, 2002. After hearing the learned counsel for the appellant, the appeal was admitted and notice as to bail was issued making it returnable on January 18, 2002. Further, the record and proceedings of the case was also called for so as to reach this Court before the returnable date and accordingly, R. and P. is received. The learned counsel for the appellant had stated at the Bar that from the record of the case, he would satisfy the court that there are reasonable grounds for believing that the appellant is not guilty of an offence punishable under the NDPS Act and that he is not likely to commit any offence while on bail and he is likely to take the same time which he would take if the appeal is heard finally. He had also tendered before the Court the paper book containing oral as well as documentary evidence on record of the trial Court. He had further stated that the appellant, who is aged about 65 years, is suffering from serious ailment and is not likely to survive and, therefore, the appeal should finally be heard. The learned a. P. P. had also agreed to the suggestion made by the learned counsel for the appellant. Therefore, we have heard the appeal finally on January 23, 24, 29, 30 and 31, 2002. ( 6 ) WE have considered the submissions advanced at the Bar by the learned counsel for the parties and reappreciated the whole evidence on record. ( 7 ) THE first contention, which is raised in this appeal by Mr. Therefore, we have heard the appeal finally on January 23, 24, 29, 30 and 31, 2002. ( 6 ) WE have considered the submissions advanced at the Bar by the learned counsel for the parties and reappreciated the whole evidence on record. ( 7 ) THE first contention, which is raised in this appeal by Mr. R. M. Agrawal, the learned counsel for the appellant, is that the search of bag, which was carried by the appellant with him, amounts to search of the person of the appellant and as the mandatory requirement of Sec. 50 of the Act was not complied with in this case, the conviction of the appellant should be regarded as illegal. It was pleaded that the appellant was not informed that he had a right to be searched either in the presence of a magistrate or in the presence of a Gazetted Officer and as the appellant was not made aware of this right, it should be held that Sec. 50 of the Act is not complied with. According to the learned counsel for the appellant, the assertion made by P. I. Mr. Pathak in his testimony that he had imformed the appellant about his right to be searched either in the presence of a Magistrate or in the presence of a Gazetted Officer is not corroborated by the contemporaneous record viz. resolutin prepared by the Police inspector indicating compliance of Sec. 50 of the Act, which is produced at Exh. 11, or complaint Exh. 20 or panchnama of place of incident at Exh. 25 and, therefore, the assertion made by P. I. Mr. Pathak that he had informed the appellant about his right, should be disbelieved. The learned counsel for the appellant emphasised that Sec. 50 of the Act is mandatory and as it is not complied with, this Court should hold that the seizure of the offending article is not proved, or that the trial is vitiated and the appeal should be accepted. In support of the plea based on Sec. 50 of the Act, the learned counsel has placed reliance on the decisions rendered in (1) State of Punjab vs. Baldev singh etc. etc. In support of the plea based on Sec. 50 of the Act, the learned counsel has placed reliance on the decisions rendered in (1) State of Punjab vs. Baldev singh etc. etc. , 1999 SAR (Cri) 473 = 1999 (6) SCC 172 , (2) Kalayath Nassar vs. State of Kerala, 2000 AIR SCW 271, (3) Babu vs. State of Kerala, 1999 SAR (Cri) 780, (4) t. P. Razak @ Nagappan Razak vs. State of Kerala, 1995 Supp4 SCC 256, and (5) bherulal Viraji Kumavat vs. State of Gujarat, 1998 (3) GLR 2497 = [ 1999 (4) GCD 2904 (Guj)]. ( 8 ) MS. Nandini Joshi, learned A. P. P. on the other hand argued that the search of bag does not amount to search of person of the appellant and, therefore, Sec. 50 is not attracted to the facts of the present case at all. After referring to the written statement filed by the appellant, the learned counsel for the State pleaded that the appellant knew very well about his right to be searched either in the presence of a Magistrate or in the presence of a Gazetted Officer and, therefore, the assertion made by P. I. Mr. Pathak that he had informed the appellant about his right to be searched either in the presence of a Magistrate or a Gazetted Officer deserves to be accepted. What was urged was that the appellant was aware about his right conferred by Sec. 50 of the Act and, therefore, even if the evidence of P. I. Mr. Pathak to the effect that he had made the appellant aware about his right under Sec. 50 is disbelieved, it would not vitiate the trial, not the seizure of the opium should be doubted. In the alternative, it was claimed that the evidence of P. I. Mr. Pathak, which is corroborated by contemporaneous record, such as, the report indicating compliance of Sec. 50 of the Act and produced at Exh. 11, the complaint in the case produced at Exh. 20 and the panchnama of the place of occurrence Exh. In the alternative, it was claimed that the evidence of P. I. Mr. Pathak, which is corroborated by contemporaneous record, such as, the report indicating compliance of Sec. 50 of the Act and produced at Exh. 11, the complaint in the case produced at Exh. 20 and the panchnama of the place of occurrence Exh. 25 as well as oral evidence of other police officers, established that the police Inspector had given option to the appellant to be searched either in the presence of a Magistrate or in the presence of a Gazetted Officer and as the provisions of Sec. 50 of the Act are substantially complied with, the conviction of the appellant, should not be regarded as illegal. In support of her submissions, learned A. P. P. has relied on the decisions rendered in (1) Kalema Tumba vs. State of Maharashtra and Anr. , 1999 (8) scc 257 , (2) Sarjudas and Anr. vs. State of Gujarat, 1999 (8) SCC 508 , (3) Abdul Rasid ibrahim Mansuri vs. State of Gujarat, 2000 (2) SCC 513 , (4) Birakishore Kar vs. State of Orissa, 2000 (9) SCC 541 , and (5) Kanhaiya Lal vs. State of M. P. , 2000 (10) SCC 380 . ( 9 ) 9 (1) The first question which, therefore, falls for our consideration is, whether the search of a bag carried by an accused with him should be regarded as search of person of the accused within the meaning of Sec. 50 of the NDPS Act. Section 50 of the Act stipulates conditions under which search of person is to be conducted. Sub-section (1) of Sec. 50 provides that when any officer duly authorised under Sec. 42 is about to search any person under the provisions of Sec. 41, Sec. 42 or Sec. 43, he shall, if such person so requires, take such person without unnecessary delay, to the nearest Gazetted officer of the departments mentioned in Sec. 42 or to the nearest Magistrate. The supreme Court has considered the scheme of Sec. 50 (1) of the Act in the State of punjab vs. Baldev Singh, (Supra) and reproduced the conclusions in Para-45 of the reported judgment. The supreme Court has considered the scheme of Sec. 50 (1) of the Act in the State of punjab vs. Baldev Singh, (Supra) and reproduced the conclusions in Para-45 of the reported judgment. The conclusion No. 1, which is relevant for our purpose is as under "that 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-sec. (1) of Sec. 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. (emphasis supplied by us ). The Supreme Court in the said decision has further held that the failure to inform the concerned person of his right as emanating from Sub-sec. (1) of Sec. 50 may render the recovery of the contraband suspect and the conviction and sentence of an accused bad unsustainable in law. 9 (2 ). In Kalayath Nassar vs. State of Kerala (Supra), the Circle Inspector Police had received an information that certain persons were on the move in an auto-rickshaw carrying brown sugar. He had, therefore, gone in search of the auto-rickshaw and come across the same. He had stopped the vehicle and found the appellant and two other persons sitting on the seat. When the appellant was searched, he was found carrying a bag in which 300 grams of brown sugar had been detected. Two other bags kept close to him, were also seized and those bags were also containing brown sugar. The supreme Court has proceeded on the footing that Sec. 50 of the Act was applicable to the facts of the said case and held that as the searching officer had failed to communicate to the accused that he had a right to be searched in presence of a Gazetted officer or a Magistrate, there was non-compliance with the requirements of Sec. 50. However, we find that the question whether the search of a bag carried by an accused with him amounts to search of the person of the accused or not, is not specifically considered in the said case nor answered in the affirmative. 9 (3 ). However, we find that the question whether the search of a bag carried by an accused with him amounts to search of the person of the accused or not, is not specifically considered in the said case nor answered in the affirmative. 9 (3 ). The Full Bench of Gujarat High Court in Bherulal Viraji Kumavat, (Supra) after placing reliance on the decision in the case of Namdi Francis Nawazor vs. Union of India and Anr. , 1997 (1) CCR 27 (SC) has held that search of a bag carried by an accused is search of the person of the accused and Sec. 50 of the Act would be applicable when a bag carried by an accused is searched. However, we find that there is significant, substantial and remarkable shift in judicial opinion on this question, which is expressed by the Supreme Court in the decisions rendered recently. 9 (4 ). In Kalema Tumba (Supra), the appellant had arrived at the Sahar Airport and his baggage was searched. The appellant had opened the bag after taking out a key from his pocket. On examination, packets containing brownish powder were found form it. The test had revealed that the said powder was heroin. The total quantity which was found from the possession of the appellant was 2 kg. The learned Judge of the trial court had convicted the appellant under Sec. 21 read with Sec. 8 (c) and Sec. 23 read with Secs. 28 and 8 (c) of the NDPS Act. The appeal filed by the appellant was partly allowed by the High Court and the High Court had confirmed the conviction, but reduced the sentence awarded in default of payment of fine. It was argued before the supreme Court that Sec. 50 of the NDPS Act was not complied with. The Supreme court has rejected the said plea holding that it is only when the person of an accused is to be searched, he is required to be informed about his right to be examined in presence of a Gazetted Officer or a Magistrate. The Supreme Court referred to its earlier decision in State of Punjab vs. Baldev Singh, and has held that the requirement of informing the accused about his right under Sec. 50 comes into existence only when the person of the accused is to be searched. The Supreme Court referred to its earlier decision in State of Punjab vs. Baldev Singh, and has held that the requirement of informing the accused about his right under Sec. 50 comes into existence only when the person of the accused is to be searched. The Supreme Court noticed that the decision of the Supreme court in State of Punjab vs. Jasbir Singh, 1996 (1) SCC 288 , wherein it was held that though poppy straw was recovered from the bags of the accused, yet he was required to be informed about his right to be searched in the presence of a Gazetted Officer or a magistrate, now stands overruled by the decision in Baldev Singhs case. What is laid down by the Supreme Court in Para-4 of the decision in Kalema Tumba (Supra) is that if a person is carrying a bag or some other article with him and a narcotic drug or a psychotropic substance is found from it, it cannot be said that it was found from his person. After noticing that heroin was found from a bag belonging to the appellant and not from his person, the Supreme Court has held that it was not necessary to make an offer for search in the presence of a Gazetted Officer or a Magistrate. 9 (5 ). In Sarjudas and Anr. (Supra), it was contended before the Supreme Court that the appellants were not informed of their right under Sec. 50 of the NDPS Act that they were entitled to be searched in the presence of a Gazetted Officer or a Magistrate and, therefore, search of the appellants was illegal and the evidence regarding recovery of charas from their possession could not have been relied upon. While holding that there was no substance in the contention, the Supreme Court has held that Charas was not found on the person of the appellants but it was found kept in a bag, which was hanging on the scooter on which they were riding and this was not a case where the person of the accused was searched and from his person narcotic drug or psychotropic substance was found. 9 (6 ). 9 (6 ). Again, in Birakishore Kar (Supra), the appellant was travelling by howrah-Puri Sri Jagannath Express and when the train had arrived at Platform No. 1 of the Balasore Railway Station, it was searched by P. W. I and others and the appellant was found lying on a plastic bag in one of the compartments of that train. The plastic bag was then seized and on verification, it was found containing 10 kg. of poppy straw. What was contended before the Supreme Court was that the mandatory requirement of sec. 50 of the NDPS Act viz. that the person to be searched should be told about his right to be examined in the presence of a Magistrate or a Gazetted Officer, was not complied with in this case. After holding that the contention was misconceived, the supreme Court has held that in the said case it was not the person of the appellant which was searched, but he was found sitting on a plastic bag which belonged to him and which contained poppy straw and, therefore, in view of the decision in the State of punjab vs. Baldev Singh, Sec. 50 would come into play only in the case of search of a person as distinguished from search of any premises etc. 9 (7 ). In Kanhaiya Lal (Supra), the appellant was convicted under the N D P S Act, as he was found in possession of opium. The High Court has also confirmed the conviction and sentence imposed on the appellant. The only point raised in the appeal before the Supreme Court was that the mandatory requirement of Sec. 50 of that Act was not complied with in this case and, therefore, the conviction of the appellant was illegal. The said plea has been negatived by the Supreme Court in the following terms: "in our opinion, there is no substance in this contention because 1 kg of opium was found from the person of the appellant, but it was found from a bag which was being carried by the appellant. Therefore, this cannot be said to be a case where on search of the person of the accused, a narcotic drug or psychotropic substance was found. In our opinion, the Courts below have correctly held that the appellant is guilty of committing the said offence. The appeal is, therefore, dismissed. " 9 (8 ). Therefore, this cannot be said to be a case where on search of the person of the accused, a narcotic drug or psychotropic substance was found. In our opinion, the Courts below have correctly held that the appellant is guilty of committing the said offence. The appeal is, therefore, dismissed. " 9 (8 ). Thus, the discussion made above would indicate that the Supreme Court has specifically considered this point and held that when a bag which is being carried by the accused is to be searched, it is not necessary to comply with Sec. 50 of the Act. At this stage, it would be instructive to refer to the Three Judge Bench decision of the supreme Court in Sunder Singh vs. State of Uttar Pradesh, AIR 1956 SC 411 . In the said case, the appellant was prosecuted under Sec. 302 IPC. At the trial, the prosecution did not adduce any direct evidence, but depended on circumstantial evidence. One of the circumstances relied on by the prosecution was seizure of the shoes worn by the appellant which were found to be stained with human blood as reported by Serologist. It was argued before the Supreme Court that seizure of blood stained shoes by the Sub inspector was not free from doubt, as the witnesses in whose presence the seizure was effected were not respectable inhabitants of the locality. While repelling the said argument, the Supreme Court has observed as under. "on the face of it, Sec. 103 would not apply to the seizure of the shoes which were being worn by the accused at the time he was with the investigating Police officer. The section applies when a search is to be made of a place. It does not apply to the search of a person. In this case, the Sub-Inspector saw the accused putting on a pair of shoes and he seized them. There is no question of search either of a place or of a person. " 9 (9 ). . The section applies when a search is to be made of a place. It does not apply to the search of a person. In this case, the Sub-Inspector saw the accused putting on a pair of shoes and he seized them. There is no question of search either of a place or of a person. " 9 (9 ). . The above quoted decision makes it manifest that, while referring to Sec. 103 of the Code of Criminal Procedure, 1898, the Supreme Court has observed that Sec. 108 of the old Code was applicable only to a search to be made in a place but not to the search of a person and the seizure of the pair of shoes worn by the accused person will not amount to the search of a place or of a person. In the view of the Supreme Court, the person refers to the body of an individual and, therefore, the shoes worn by him cannot be the person and, therefore, the law relating to the search of a person and a place is not applicable to the search of shoes. Applying this parameter as laid down by the Supreme Court, the bag in the hands of the appellant cannot be treated either as a place or a person and, therefore, Sec. 50 of the Act which is specifically applicable to the search of a person, cannot be applied to the search of the bag which was in the hands of the appellant. It is worthwhile to note that when a bag carried by an accused is handed over to the searching officer, who searches the same, in most of the cases, there would not be even an occassion to touch the body of the accused. Therefore, Sec. 50 Sub-sec. (4) provides that a female shall be searched only by a female. If search of bag in the hands of an accused is construed as search of his person, it would frustrate the object of the Act and in several cases, the culprits who pollute the society as a whole will have to be acquitted. It is well settled that the provisions of an Act should not be construed in a manner which would frustrate the object of the Act and such a construction should always be avoided. It is well settled that the provisions of an Act should not be construed in a manner which would frustrate the object of the Act and such a construction should always be avoided. Moreover, in fact as well as in law, there is well maintained distinction between the search of a bag carried by an accused and the person of the accused. When a bag which is with an accused is searched. It is difficult to hold that the person of the accused is searched. Further, it cannot be said that the bag carried by an Accused is inextricably connected with the person of the accused because the bag can be dropped from the hand at any point of time. Therefore, in our view, when a bag carried by an accused in his hand is searched, it is not necessary for the investigating officer to comply with the provisions of Sec. 50 of the N D P S Act because the person of the accused is not searched. In view of the clear proposition of law laid down by the Supreme Court that search of a bag does not amount to search of person of an accused, we are of the opinion that the appellant is not entitled to the benefit of Full Bench decision of this court and we hold that it was not necessary for P. I. Mr. Pathak to inform the appellant that he had right to be searched either in the presence of a Magistrate or in the presence of a Gazetted Officer. 9 (10 ). Even if it is assumed for the sake of argument that Sec. 50 of the Act would be applicable to search of a bag carried by an accused, we find that P. I. Mr. Pathak has specifically stated in his evidence before the Court that he had informed the appellant that he had a right to be searched in the presence of a Magistrate or a gazetted Officer and that the appellant had opted to be searched before him and not before a Magistrate or a Gazetted Officer. In ordinary course, we would have doubted this assertion made by Mr. In ordinary course, we would have doubted this assertion made by Mr. Pathak in his testimony before the Court because the fact that he had informed the appellant about his right to be searched in the presence of a Magistrate or a Gazetted Officer, is not reflected either in the report prepared by him for indicating compliance of Sec. 50 and produced at Exh. 11 or in the complaint Exh. 20 or panchnama Exh. 25, but in the facts of the case, there is not reason to doubt the assertion made by Mr. Pathak in his deposition before the court because the appellant in his written statement has specifically stated that he was aware of his right to be searched either in the presence of a Magistrate or in the presence of a Gazetted Officer and that he had asserted the said right, but the Police inspector had not taken him either before a Magistrate or before a Gazetted Officer. The written statement filed by the appellant would indicate that he was aware about his right and, therefore, there is no reason to disbelieve that claim advanced by P. I. Mr. Pathak that he had informed the appellant about his right to be searched in the presence of a Magistrate or a Gazetted Officer. Even if this assertion of P. I. Mr. Pathak is disbelieved, there is no manner of doubt that the appellant was aware about his right conferred by Sec. 50 of the Act and in such circumstances, not making aware the appellant about his right under Sec. 50, is of little consequence. Therefore, we are of the opinion that Sec. 50 was complied with before the search of the bag carried by the appellant with him and the appellant is not entitled to any benefit on the ground that Sec. 50 was committed breach of by the investigating officer. 9 (11 ). Even if it is assumed for the sake of argument that the assertion made by p. I. Mr. Pathak in his testimony before the Court that he had informed the appellant about his right to be searched in the presence of a Magistrate or a Gazetted Officer is doubtful, we find that the evidence on record clinchingly established that P. I. Mr. Pathak in his testimony before the Court that he had informed the appellant about his right to be searched in the presence of a Magistrate or a Gazetted Officer is doubtful, we find that the evidence on record clinchingly established that P. I. Mr. Pathak had given option to the appellant that if he so desired, he could be taken to the Gazetted Officer or a Magistrate for the purpose of search, but the appellant had not exercised the said option saying that he had full faith in Mr. Pathak. This fact is proved not only by the report which was prepared by P. I. Mr. Pathak indicating compliance of Sec. 50, which is produced at Exh. 11, but this fact also stands proved by the contents of complaint Exh. 20 as well as the contents of panchnama of the place of occurrence produced at Exh. 25. There is no manner of doubt that prosecution has satisfactorily established that P. I. Mr. Pathak had given option to the appellant that if he so desired, he could be taken to the Gazetted Officer or the magistrate for the purpose of search, but the appellant had not exercised the said option. Thus, there is substantial compliance of Sec. 50 of the Act. The Supreme court in Sajan Abraham vs. State of Kerala, 2001 (6) SCC 692 , while construing the provisions of the N D P S Act has held that in construing any facts to find, whether the prosecution has complied with the mandate of any provision which is mandatory, one has to examine it with a pragmatic approach. What is emphasised therein is that the law under the aforesaid Act being stringent to the persons involved in the field of illicit drug traffic and drug abuse, the legislature time and again has made some of its provisions obligatory for the prosecution to comply with, which the Courts have interpreted to be mandatory and this is in order to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance, but the stringency is because of the type of crime involved under it, so that no such person escapes from the clutches of the law. What is ruled by the Supreme Court in this decision is that the Court, however, while construing such provisions strictly, should not interpret them so literally so as to render their compliance, impossible and that the question whether any particular provision is complied with or not should be examined with a pragmatic approach. 9 (12 ). In Joseph Fernandez vs. State of Goa, 2000 (1) SCC 707 , the question was whether the officer, who had conducted the search, was oblidged to inform the person who was subjected to search, that he had a right to be searched in the presence of a gazetted Officer or a Magistrate. The evidence in that case indicated that PW. 8 had told the appellant that if he wished, he could be searched in the presence of a Gazetted officer or a Magistrate to which the appellant had not favourably reciprocated. The information conveyed by the searching officer to the appellant was in these terms: "if you wish, you may be searched in the presence of a Gazetted Officer or a magistrate. " The Supreme Court has held that this is in substantial compliance with the requirements of Sec. 50 and the Supreme Court did not agree with the contention that there was non-compliance with the mandatory provisions of Sec. 50 of the Act. Applying the principle laid down by the Supreme Court in the above case to the facts of the present case, we find that Exhs. 11, 20 and 25 read with evidence of P. I. Mr. Pathak and others, clearly establish that Sec. 50 of the Act, in any view of the matter, was substantially complied with. Therefore, the appellant is not entitled to any benefit on the ground that the provisions of Sec. 50 were not complied with before search of the bag carried by him was effected. Thus, we do not find any substance in any of the arguments which is based on the interpretation of Sec. 50 of the Act and those contentions are, therefore, hereby rejected. ( 10 ) 10 (1 ). The second contention which was advanced at the Bar by the learned counsel for the appellant was that the mandatory provisions of Secs. 42 (1) and 42 (2) are not complied with and, therefore, the conviction of the appellant should be regarded as illegal. ( 10 ) 10 (1 ). The second contention which was advanced at the Bar by the learned counsel for the appellant was that the mandatory provisions of Secs. 42 (1) and 42 (2) are not complied with and, therefore, the conviction of the appellant should be regarded as illegal. According to the learned counsel for the appellant, Sec. 42 (2) is mandatory and is required to be complied with even when a bag carried by an accused person is searched in a public place and as Sec. 42 (2) is not complied with, the appeal should be allowed. The learned counsel pointed out that Exh. 10 indicating the compliance of Sec. 42 (2) is doubtful because the name of the father of the appellant is mentioned, though the name of father of the appellant was not stated in the secret information received by police constable Himatsinh or information which was given by police constable himatsinh to P. I. Mr. Pathak. Further, it was claimed that in Exh. 10, time is mentioned in blank space and no evidence is led as to by whom and when it was received and, therefore, Exh. 10 cannot be construed as evidence produced by the prosecution to establish compliance of Sec. 42 (2) of the Act. In support of his plea that when a search is carried out in a public place, Sec. 42 (2) of the Act would be applicable, the learned counsel for the appellant has placed reliance on the decision in Koluttumottil Razak vs. State of Kerala, 2000 0 SCC (Cr) 829. As against this, Ms. Nandini Joshi, learned APP pleaded that the evidence on record shows that the appellant was found in possession of opium on public road and in such circumstances, procedure under Sec. 42 (2) was not required to be followed. In support of her this plea, the learned APP has relied upon the decisions in (1) Sayar Puri vs. State of Rajasthan, 1998 (7) SCC 441 . (ii) Division bench judgment of this Court in Aslam Ibrahim Memon and Anr. vs. State of Gujarat, 1990 Criminal Law Journal 1787, and (iii) Ravishankar Bhagwatiprasad Mishra vs. State of Gujarat, 2000 (1) GLR 137 = [ 2000 (4) GCD 3196 (Guj)]. In the alternative, the learned APP submitted that Exh. (ii) Division bench judgment of this Court in Aslam Ibrahim Memon and Anr. vs. State of Gujarat, 1990 Criminal Law Journal 1787, and (iii) Ravishankar Bhagwatiprasad Mishra vs. State of Gujarat, 2000 (1) GLR 137 = [ 2000 (4) GCD 3196 (Guj)]. In the alternative, the learned APP submitted that Exh. 10 does not indicate that time is mentioned in blank space and there is no reason to doubt the genuineness of Exh. 10 at all. 10 (2 ). The Question, therefore, which falls for our consideration, is whether it was necessary for P. I. Mr. Pathak to comply with the provisions of Sec. 42 (2) of the Act when the evidence admittedly shows that the appellant was found in possession of opium while he was passing on a public road. In K. Razak (Supra), the Sub-Inspector of police had got information that one man was selling brown sugar near the Sarada mandiram Bus-stop. It was admitted by the Sub-Inspector in his cross-examination that he had not reduced the information in writing, nor had informed his superior officers about it and instead he had opted to proceed to the place without doing the aforesaid duty. The Supreme Court has held that it is a mandate of Sec. 42 of the Act that when an officer referred to in Sub-sec. (1) thereof 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 is kept or concealed he may detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence under the Act. According to the Supreme Court, the other requirement of law is that the officer who takes down the information in writing or records grounds for his belief, shall forthwith send a copy thereof to his immediate official superior. After noticing Three Judge Bench decision of the Supreme Court in abdul Rashid Ibrahim Mansuri vs. State of Gujarat, it is held that non-compliance with sec. 42 (1) and (2) would render the resultant search and seizure suspect, though that by itself may not vitiate the proceedings. After noticing Three Judge Bench decision of the Supreme Court in abdul Rashid Ibrahim Mansuri vs. State of Gujarat, it is held that non-compliance with sec. 42 (1) and (2) would render the resultant search and seizure suspect, though that by itself may not vitiate the proceedings. After going through the decision of the Supreme court carefully, we find that the question whether the provisions of Sec. 42 (2) of the act would apply when the offending article is found from a public place, is not specifically considered by the Supreme Court, but the Supreme Court has given the decision on the assumption that Sec. 42 (2) would also apply when an offending article is found from a public place. The said observations made by the Supreme Court cannot be treated as a binding precedent, as the question which is posed for our consideration in this appeal, was never canvassed before the Supreme Court, nor the Supreme Court had addressed itself to the said question. Further, it is neither desirable nor permissible to pick out a word or sentence from the judgment of the Supreme Court divorced from the context of the question under consideration and treat it to be the complete law declared by the Supreme Court. As laid down by the Supreme Court in Commissioner of Income Tax vs. Sun Engineering Works (P ). Ltd. , 1992 (4) SCC 363 , the judgment of the Supreme Court must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before the Supreme court. What is emphasised in the reported decision is that the decision of the Supreme court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the Courts must carefully try to ascertain the true principle laid down by the decision of the Supreme Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by the Supreme Court. In Madhav Rao Scindia vs. Union of India, 1971 (1) SCC 85 , the Supreme Court has cautioned that "it is not proper to regard a word, a clause or a sentence occurring in a judgment of the Supreme Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment. " 10 (3 ). In view of the above mentioned two decisions of the Supreme Court, the decision of the Supreme Court in Koluttumottil Razak (Supra) cannot be construed as laying down a proposition of law that when a narcotic drug or psychotropic substance is found in a public place, the provisions of Sec. 42 (2) of the Act must be complied with. However, we find that this question has been specifically considered by the Supreme court and negatived in Sayar Puri vs. State of Rajasthan, 1998 (7) SCC 441 In the said case, the appellant was convicted under Sec. 8 read with Sec. 18 of the NDPS Act, 1985, as he was found in possession of opium. The contention raised on behalf of the appellant before the Supreme Court was 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. After holding that the contention was misconceived, the Supreme Court has held that the police officers, who were examined in this case, had stated that the accused was found sitting on a bench on the Mandia Road and as he was found sitting on a public road, neither the procedure under Sec. 42 (2) of the Act was required to be followed, nor was the site plan required to be prepared. Thus, the Supreme Court has specifically held that when an accused is found to be in possession of a narcotic drug or psychotropic substance in a public place, procedure under Sec. 42 (2) of the Act is not required to be followed. 10 (4 ). Thus, the Supreme Court has specifically held that when an accused is found to be in possession of a narcotic drug or psychotropic substance in a public place, procedure under Sec. 42 (2) of the Act is not required to be followed. 10 (4 ). In Aslambhai Ibrahimbhai Memon (Supra), the Division Bench of the gujarat High Court comprising M. B. Shah, J. (as he then was ) and B. S. Kapadia, J. , has considered this question specifically and held that whenever any search or seizure is to be made in any public place or in a vehicle in transit or any person is to be arrested or detained from a public place, it is not intended by the Legislature to take down the said information in writing. What is ruled therein is that it is important to know that wordings of Secs. 41 and 42 with regard to information taken in writing have been deliberately omitted by the legislature in Sec. 43 and that has been done advisedly inasmuch as the police officer may get information about the person in public place at the last moment and if he has to undergo the procedure of taking it in writing and recording the reasons for his belief, possibly such information may not be useful. After bringing out clear distinction between the provisions of Secs. 42 and 43 of the Act, the Division Bench has explained that Sec. 42 speaks about search and seizure from any building, conveyance or enclosed place, while Sec. 43 speaks about the search and seizure from public place or in transit and as the wordings of Secs. 41 and 42 with regard to information taken in writing have been deliberately omitted by the Legislature in Sec. 43; the provisions of Sec. 42 would not be applicable when any search or seizure is made in any public place or in a vehicle in transit or any person is to be arrested or detained from any public place. 10 (5 ). Again, in Ravlshankar Bhagwatiprasad Mishra (Supra), the Division Bench of this Court had occasion to consider the question whether Secs. 41 (2) and 42 (2) of the act should be complied with when search and seizure of a person sitting on otta portion of a building is made. In the said case, the appellant, who was sitting on otta portion of a building, was searched. 41 (2) and 42 (2) of the act should be complied with when search and seizure of a person sitting on otta portion of a building is made. In the said case, the appellant, who was sitting on otta portion of a building, was searched. The contention, which was raised before the Division Bench was that the provisions of Secs. 41 (2) and 42 (2) were not complied with and, therefore, the conviction of the appellant was illegal, the Division Bench after interpreting the provisions of Secs. 41 (2) and 42 (2) has held that those provisions would not be applicable, inasmuch as it was not a case where a building or a conveyance or a private place was required to be searched. In view of the clear proposition of law laid down by the Supreme Court in Sayar Puri vs. State of Rajasthan, (Supra), we are of the opinion that it was not necessary for P. I. Mr. Pathak to comply with the provisions of sec. 42 (2) of the Act and the appellant is not entitled to acquittal on the ground that the investigating officer had failed to comply with the mandatory provisions of Sec. 42 (2) of the Act. 10 (6 ). Even if one were to assume that the provisions of Sec. 42 (2) of the Act were required to be complied with, we find that the requirements of the said section were complied with, which is quite evident from Exh. 10. Exh. 10 is the intimation dated June 10, 2001 given by P. I. Mr. Pathak to the Assistant Commissioner of police, Crime Ahmedabad City. In the said information it is specifically stated that p. I. Mr. Pathak had received secret information from police constable Himatsinh narubha that the appellant was to pass through Thaltej Circle from Sarkhej for going towards Ghatlodia with opium and that accordingly, a raid had been arranged. The contention that the name of the father of the appellant is mentioned in the said intimation sent by the Police Inspector to his higher officer and, therefore, it is of a doubtful nature, has no substance. It is relevant to notice that no foundation has been laid in the cross-examination of P. I. Mr. The contention that the name of the father of the appellant is mentioned in the said intimation sent by the Police Inspector to his higher officer and, therefore, it is of a doubtful nature, has no substance. It is relevant to notice that no foundation has been laid in the cross-examination of P. I. Mr. Pathak, nor any explanation was sought from him as to in which circumstances he had mentioned the name of the father of the appellant in the intimation sent by him to his higher officer. Similarly, the plea that in Exh. 10, time is mentioned in blank space, is also devoid of merits. We have perused Exh. 10 and we do not find that time is mentioned in blank space. The contention that Javak number (Outward Number) is not mentioned in Exh. 10 and, therefore, the claim of the Police Inspector that he had given intimation about the secret information of his higher officer should be disbelieved, has no merit because the Police Inspector in Para-10 of his deposition has clearly stated that no outward Register is being maintained and it could not be established even on preponderance of probabilities by the appellant that any Outward Register was being maintained in the Office of Police Inspector Mr. Pathak. On reappreciation of evidence, we do not find that Exh. 10 is of doubtful nature and there is no reason to discard the same. As observed earlier, Exh. 10 proves that necessary intimation about secret information received was given by P. I. Mr. Pathak to his superior officer and, therefore, in our view, the provisions of Sec. 42 (2) of the Act were complied with by him. ( 11 ) THE third contention, which is raised by the learned counsel for the appellant, is that by not informing the appellant of the grounds for his arrest, the investigating officer has committed breach of the provisions of Sec. 52 (1) of the NDPS Act, Sec. 50 of the Code of Criminal Procedure and Art. 22 (5) of the Constitution and, therefore, the appellant should be acquitted. In our view, this plea is without any substance. The evidence of P. I. Mr. In our view, this plea is without any substance. The evidence of P. I. Mr. Pathak and that of other police officers examined in the case, establishes that the appellant was stopped when he was passing near Thaltej cross Roads and he was informed that he was to be searched, as an information was received that he was in possession of opium. Moreover, the evidence on record would indicate that search of the bag carried by the appellant in his hand was made in the presence of panch witnesses and that the opium was found. Thereafter, the panchnama was prepared and complaint was drawn on the spot. Therefore, the appellant knew very well as to why he was arrested. Moreover, Exh. 18 is the arrest memo which was served on the appellant on June 10, 2001 at 17. 00 hours. The original was given to the appellant and, therefore, carbon copy of the same has been produced on the record of the case through the evidence of P. I. Mr. Pathak. In Exh. 18 also it is stated that the appellant was arrested because he was found in possession of opium and that he had committed offences punishable under Secs. 17 and 18 of the act. Thus, there is no manner of doubt that the provisions of Sec. 52 (1) of the NDPS act and Sec. 50 of the Code of Criminal Procedure were complied with by informing the appellant of the grounds of his arrest. ( 12 ) THE plea that there is breach of the provisions of Art. 22 (5) of the Constitution and, therefore, the conviction of the appellant is vitiated, has no substance. In Soni natverlal Prabhudas and Anr. vs. State and Ors. , 1983 (2) GLR 945, while construing the provisions of Sec. 50 (1) of the Code of Criminal Procedure, 1973, it is held that it is not necessary that full particulars of offence must be communicated to the accused for which he is arrested and that Art. 22 of the Constitution is not applicable in such case. , 1983 (2) GLR 945, while construing the provisions of Sec. 50 (1) of the Code of Criminal Procedure, 1973, it is held that it is not necessary that full particulars of offence must be communicated to the accused for which he is arrested and that Art. 22 of the Constitution is not applicable in such case. What is emphasised in the said decision is that the requirements of Art. 22 (1) and Art. 22 (5) of the Constitution are laid in relation to different contingencies and in case of a person who is arrested or detained under any law providing for preventive detention, Clauses (1) and (2) of Art. 22 of the Constitution will apply, but in a case of a person who is arrested under a law, other than the law providing for preventive detention, he is required to be produced before the Magistrate within the period of 24 hours of such arrest and so far as detention other than preventive detention is concerned, the provisions of Art. 22 (1) and (2) of the Constitution of india will not apply. It is further ruled in the said decision that those cases in which the supreme Court has interpreted Clause (5) of Art. 22 of the Constitution in relation to preventive detention, will not apply in cases of arrest or detention under law other than the preventive detention. We are in respectful agreement with the view expressed by this Court in the above mentioned case and we hold that while arresting a person for illegally possessing a narcotic drug or psychotropic substance, it is not necessary to comply with the provisions of Art. 22 (5) of the Constitution. Further, the requirements of Sec. 52 (1) of the NDPS Act have been discussed by the Division Bench in aslambhai Ibrahimbhai Metnon (Supra ). In the said case, complaint was filed against the appellant, as he could not produce any pass or permit for possessing drug recovered from him. The complaint of the said case indicated all the relevant facts. It was found that all the papers of investigation were supplied to the appellant before framing of charge. Having regard to the totality of the facts and circumstances of the case, the division Bench has held that there was no non-compliance of Sec. 52 (1) of the Act. The complaint of the said case indicated all the relevant facts. It was found that all the papers of investigation were supplied to the appellant before framing of charge. Having regard to the totality of the facts and circumstances of the case, the division Bench has held that there was no non-compliance of Sec. 52 (1) of the Act. As held by us, Clause (5) of Art. 22 of the Constitution is not applicable to the facts of the present case; whereas we have held that the steps taken by P. I. Mr. Pathak on the spot and Exh. 18 indicate compliance of Sec. 52 (1) of the Act and, therefore, the appellant is not entitled to acquittal on the ground that the investigating officer had failed to comply with provisions of Sec. 52 (1) of the Act. ( 13 ) THE fourth contention, which is advanced by the learned counsel for the appellant is that the provisions of Sec. 55 of the Act are not complied with and, therefore, the impugned judgment should be set aside. Section 55 of the Act provides that an officer incharge of a police station shall take charge of and keep in safe custody, pending the order of the learned Magistrate, all articles seized under the Act within the local area of that police station and which may be delivered to him and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station. In this regard, we find that P. I. Mr. Pathak has clearly stated in his deposition that he had handed over the articles seized during the course of raid to head constable Ganpatsinh Samantsinh Chauhan, who was then PSO of the police station and another police officer Vikramsinh had also assisted him. PSO Ganpatsinh Samantsinh Chauhan, who is examined in the case as pw 6 at Exh. 27, has clearly stated that at about 18. 30 hours on June 10, 2001, the muddamal seized as well as relevant papers, such as complaint, panchnama, report prepared by the expert of FSL on the spot, arrest memo etc. , were handed over to him by P. I. Mr. 27, has clearly stated that at about 18. 30 hours on June 10, 2001, the muddamal seized as well as relevant papers, such as complaint, panchnama, report prepared by the expert of FSL on the spot, arrest memo etc. , were handed over to him by P. I. Mr. Pathak and police officer Vikramsinh and that he had kept the same with him. The officer incharge of the police station has further stated that he had received the muddamal in a proper sealed condition. This assertion made by witness ganpatsinh, who was PSO at the relevant time, could not be shaken during his cross-examination. Moreover, the evidence of P. I. Mr. Pathak stands corroborated by contemporaneous record viz. Exh. 21, which is memorandum prepared by him while handing over muddamal articles seized during the course of raid to Ganpatsinh, who was incharge of the Detection of Crime Branch, Ahmedabad City. We further find that below the said memorandum, even Ganpatsinh, who was officer incharge of the police station, has made an endorsement. Moreover, the evidence of witness ganpatsinh gets sufficient corroboration from Entry No. 9 which was made by him in the station diary and which is produced on the record of the case at Exh. 29. In the said Entry also, description of muddamal handed over to him is given and it is stated that muddamal articles were handed over to him by P. I. Mr. Pathak. The contention that PSO had not sealed the sample with his seal indicating that he was officer incharge of the police station and, therefore, there is non-compliance of the provisions of Sec. 55 of the Act is devoid of merits. The seal of the officer is to be affixed only on the samples which are taken. It is not necessary that in case the articles are brought and delivered to the officer incharge of the police station by the authorised officer seizing such goods, then again seal of the officer incharge of the police station should be affixed on it. This is what the Division Bench of this High court has held in State of Gujarat vs. Abdul Rashid Ibrahim Mansuri, 1990 (2) GLR 947 . In the present case, the box containing the muddamal article duly sealed as well as other things found from the bag such as cash, electricity bill etc. This is what the Division Bench of this High court has held in State of Gujarat vs. Abdul Rashid Ibrahim Mansuri, 1990 (2) GLR 947 . In the present case, the box containing the muddamal article duly sealed as well as other things found from the bag such as cash, electricity bill etc. , were handed over to the police officer in charge of police station who had preserved the same in the same condition and the whole of the muddamal duly sealed was sent to the FSL for analysis. The officer seizing the articles had affixed the seal at the place where the articles were seized and thereafter the articles were delivered to the officer incharge of the police station. No samples were drawn at the police station from the articles brought to the police station and, therefore, it was not necessary for the officer incharge of the police station to seal the articles again at the police station. On overall view of the matter, we are satisfied that the provisions of Sec. 55 of the Act are fully complied with by the prosecution and the appellant is not entitled to any benefit on the ground that the prosecution has failed to comply with provisions of sec. 55 of the Act. ( 14 ) THE fifth contention that there is breach of the provisions of Sec. 57 of the Act and, therefore, the appellant should be acquitted, has no substance. Section 57 of the act provides that whenever any person makes any arrest or seizure under this Act, he shall, within forty eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. The evidence of P. I. Mr. Pathak shows that after seizure of the opium and arrest of the appellant under the Act, he had informed his higher officers about the same on telephone. This part of his evidence could not be effectively challenged, though he was cross-examined at length. The police officer incharge of the police station i. e. , head constable Ganpatsinh has also stated in his evidence that after seizure of the opium and arrest of the appellant under the Act, he had informed his higher officers regarding which an entry was made in the police station diary. The police officer incharge of the police station i. e. , head constable Ganpatsinh has also stated in his evidence that after seizure of the opium and arrest of the appellant under the Act, he had informed his higher officers regarding which an entry was made in the police station diary. Witness Ganpatsinh is fully corroborated by entry which is produced on the record of the case at Exh. 28. Thus, the evidence of P. I. Mr. Pathak read with that of Ganpatsinh and the contents of Entry Exh. 28, establishes that the provisions of Sec. 57 of the Act were complied with. ( 15 ) WHILE summing-up our discussion regarding compliance of the provisions of secs. 52 and 57 of the Act, we notice that the Supreme Court in the State of Punjab vs. Balbir Singh, 1994 (3) SCC 299 has held that the provisions of Secs. 52 and 57 are by themselves not mandatory. After explaining that these provisions contain certain procedural instructions for strict compliance by the officers, it is ruled that if there is no strict compliance of any of these instructions that by itself cannot render the acts done by these officers null and void and at the most it may affect the probative value of the evidence regarding arrest or search and in some cases it may invalidate such arrest or search. What is emphasized in the said decision is that such violation by itself does not invalidate trial or conviction, if otherwise there is sufficient material and, therefore, it has to be shown that such non-compliance has caused prejudice and resulted into failure of justice. However, in Mohinder Kumar vs. The State, Panaji, Goa, AIR 1995 SC 1157 , the Supreme Court in Para-3 has held as under"in Balbir Singhs case, it has been further stated that the provisions of Secs. 52 and 57 of the Act, which deal with the steps to be taken by the officer after making arrest or seizure are mandatory in character. In that view of the matter, the learned counsel for the State was not able to show for want of material on record, that the mandatory requirements pointed out above had been adhered to. The accused is, therefore, entitled to be acquitted. "as noticed earlier, in Balbir Singhs case, it has been specifically stated that the provisions of Secs. In that view of the matter, the learned counsel for the State was not able to show for want of material on record, that the mandatory requirements pointed out above had been adhered to. The accused is, therefore, entitled to be acquitted. "as noticed earlier, in Balbir Singhs case, it has been specifically stated that the provisions of Secs. 52 and 57 are by themselves not mandatory and violation of those provisions by itself does not invalidate the trial or conviction, if otherwise there is sufficient material. What is emphasised in Balbir Singhs case is that it has to be shown that non-compliance of the provisions of Secs. 52 and 57 has caused prejudice and resulted into failure of justice. However, by inadvertance, the Supreme Court in mohinder Kumar (Supra) has held that in Balbir Singhs case, the provisions of Secs. 52 and 57 of the Act are held to be mandatory in character. We further find that in gurbax Singh vs. State of Haryana, 2001 (3) SCC 28 , the Supreme Court on interpretation of the provisions of Secs. 52 and 57 has held that those provisions are directory and violation thereof would not ipso facto vitiate the trial or conviction. Again, in Sajan Abraham vs. State of Kerala, 2001 (6) SCC 692 , the Supreme Court has held that Secs. 52 and 57 are not mandatory and if substantial compliance with it is made, it would not vitiate the prosecution case. We have held earlier that the provisions of Secs. 52 and 57 have been complied with. Even otherwise, the appellant could not show that the so-called non-compliance of the provisions of Secs. 52 and 57 has caused prejudice to him and resulted into miscarriage of justice. Therefore, the plea which is based on violation of the provisions of Secs. 52 and 57 cannot be accepted. ( 16 ) THE sixth contention that the muddamal was not kept in safe custody, nor had it reached in proper form to FSL and, therefore, the report of the FSL indicating that the substance found from the possession of the appellant should be ignored, has no substance. The evidence of P. I. Mr. Pathak would indicate that after he had effected seizure, he and police constable Vikramsinh had handed over the muddamal seized to police officer incharge of the police station i. e. , head constable Ganpatsinh. The evidence of P. I. Mr. Pathak would indicate that after he had effected seizure, he and police constable Vikramsinh had handed over the muddamal seized to police officer incharge of the police station i. e. , head constable Ganpatsinh. This evidence of P. I. Mr. Pathak gets full corroboration from the evidence of police constable Ganpatsinh as well as memorandum prepared by Mr. Pathak regarding handing over of the muddamal in a sealed condition to Ganpatsinh, which is produced at Exh. 21. As noticed earlier, police constable Ganpatsinh had made an endorsement below Exh. 21. The evidence of the above-referred to two police officers establishes that the articles which were marked as Mark a and Mark b seized from the possession of the appellant during the course of raid were properly sealed and were handed over to officer incharge of Detection of Crime Branch in a sealed condition on June 10, 2001. The evidence of police officer incharge of Detection of crime Branch i. e. , Ganpatsinh gets sufficient corroboration from Entry No. 9 made by him in the station diary, which is produced at Exh. 29. Further, the evidence of head constable Ganpatsinh would indicate that he had received the muddamal articles in proper condition and he had handed over the muddamal on June 11, 2001 to crime writer head Rumalji Shivaji for the purpose of sending the same to FSL. The evidence of Rumalji Shivaji, who is crime writer head and who is examined as PW. 7 at Exh. 30, shows that the muddamal in sealed condition was handed over to him by ganpatsinh, who was police officer incharge of the Detection of Crime Branch for the purpose of handing it over to FSL on June 11, 2001. The evidence of witness rumalji also makes it evident that on June 11, 2001 at about 10. 45 hours in the morning Assistant Sub Inspector Pravinhsinh Abhesinh Jhala had obtained necessary form from the Office of Commissioner of Police for sending the muddamal for analysis to FSL and that after filling in the form, he had delivered the muddamal articles to FSL on June 11, 2001 for analysis. The report of FSL, which is produced on record of the case at Exh. The report of FSL, which is produced on record of the case at Exh. 36, establishes that the muddamal articles were received in proper condition on June 11, 2001 and the sample had the seal of Inspector of police, DCB, ABAD City. Merely because the quantity received by FSL was 26. 525 grams, though 25 grams of sample was taken out for the purpose of analysis, one cannot jump to the conclusion that the sample was tampered with because in the report itself it is mentioned that the weight of the sample, which was found to be 26. 525 grams, included the weight of plastic pieces. Similarly, the contention that the report of the analyst indicates that cellotape was also applied on the sample, though it is not so stated either in the panchnama or in the complaint or in the evidence of any witness and, therefore, tampering of sample is not ruled out, has no substance, because no foundation was laid in the cross-examination of Police Inspector, nor any request was made to examine Mr. J. F. Mansuri, who was Scientific Officer and Ex. Officio Assistant Technical Examiner to Government of Gujarat, Ahmedabad and who had examined the substance. The doubt, if any, regarding the fact that the substance seized was opium, stands repelled by Exh. 40. which is the certificate issued by the expert of FSL indicating that quantity of 2 grams out of 340 grams was taken out for preliminary inquiry on the spot and on smelling, it was found that it was psychotropic substance. We may say that Exh. 14 was never seriously challenged on behalf of the appellant during the course of trial. Under the circumstances, it is wrong to content that the muddamal was not kept in safe custody or that as there was possibility of tempering with the sample sent to the FSL , it is not proved that the substance found was opium. ( 17 ) THE seventh contention that the provisions of Sec. 102 (3) of the Code of criminal Procedure, 1973 are not complied with and, therefore, the appellant is entitled to acquittal, has no factual basis. Section 102 (3) of the Code of Criminal procedure provides that every police officer acting under Sub-sec. (1) shall forthwith report seizure to the Magistrate having jurisdiction in the matter. Witness bhanushanker Chhaganlal Joshi, PW. 10 Exh. Section 102 (3) of the Code of Criminal procedure provides that every police officer acting under Sub-sec. (1) shall forthwith report seizure to the Magistrate having jurisdiction in the matter. Witness bhanushanker Chhaganlal Joshi, PW. 10 Exh. 35, who had carried out the investigation into the case, has produced production report dated June 11, 2001 at exh. 39. It indicates that on June 11, 2001, the appellant was produced before the learned Metropolitan Magistrate, Court No. 11, Ahmedabad City and in the said report, it was started that the appellant was arrested on June 10, 2001 at about 17. 00 hours for the offences punishable under Secs. 17 and 18 of the NDPS Act. Further, the particulars of muddamal articles seized were also mentioned in detail. There is no manner of doubt that there can be combined report meaning thereby production report as well as report contemplated under Sec. 102 (3) of the Code of Criminal procedure. In view of the evidence of the investigating officer read with contents of exh. 21, there is no manner of doubt that the provisions of Sec. 102 (3) of the Code were complied with by the investigating officer and that the appellant is not entitled to acquittal on the specious plea that the provisions of Sec. 102 (3) of the Code were not complied with. ( 18 ) THE eighth contention advanced by the learned counsel for the appellant that the evidence of police officer is not supported by independent witnesses and, therefore, the prosecution case should be disbelieved, has no substance. As noted earlier while stating the facts of the case, on receipt of secret information from head constable Himatsinh, PI Mr. Pathak had summoned two punch witnesses i. e. , imamsha Chandsha Diwan, PW. 3 Exh. 23 and Rajakbhai Chandbhai Belim, PW. 4 exh. 24. It is true that both the punch witnesses have turned hostile. However, we find that witness Imamsha Diwan has stated in his evidence that after signing first part of the panchnama at the police station, he had gone to Thaltej Cross Roads in a police van along with police personnel, whereas witness Rajakbhai Chandbhai Belim in his evidence has stated that from the police station they had not gone to any place at all. A fair reading of the evidence of the two punch witnesses indicates that both of them are Hers and their evidence does not inspire confidence of the Court at all. Therefore, merely because they have not supported the prosecution case that by itself cannot be treated as a ground to disbelieve the evidence of police officers, which is otherwise found to be trustworthy and reliable. In this regard, it would be advantageous to refer to the decision of the Supreme Court in Aher Raja Khima vs. State of Saurashtra, AIR 1956 SC 217 , wherein it is ruled that the presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds therefor. What is laid down for the guidance of the Courts is that the attitude to distrust and suspect a police officer without good ground, therefore, could do neither credit to the magistracy, nor good to the public and it can only run down the prestige of the police administration. Reading the evidence of police officers who are examined in the case, we are of the firm opinion that the prosecution case cannot be disbelieved merely because the so-called independent witnesses have not supported the prosecution case. We further find that the evidence of police officers gets corroboration from the evidence of witness Bharatbhai Rupabhai Od, PW. 2 Exh. 22, who is a businessman having shop of grocery at village Thaltej. His evidence would show that on June 10, 2001 at about 2. 00 p. m. , two police men in simple dress had approached him and called him at the place of the incident for the purpose of weighing the opium found from the possession of the appellant. He has stated that he had carried with him scale and weights for the purpose of weighing the substance found from the possession of the appellant and the weight of the substance was found to be 340 grams. What is mentioned by Bharatbhai in his testimony before the Court is that there was a man who was looking like a shepherd and he had identified the appellant in the Court room as the person, who was found at the place of incident when he had gone to weigh the substance at the place of incident. What is mentioned by Bharatbhai in his testimony before the Court is that there was a man who was looking like a shepherd and he had identified the appellant in the Court room as the person, who was found at the place of incident when he had gone to weigh the substance at the place of incident. It is true that there are some minor contradictions in his evidence, such as, whether he had gone on foot to the place of incident or on scooter etc. , but those minor contradictions are inconsequential and do not affect the varacity of the statements made by the witness before the Court on oath. Further, the evidence of police officers also gets corroboration from the report of the expert of FSL, which was prepared on the spot and produced on the record of the case at Exh. 14. Therein also, name of the appellant is mentioned and the procedure undertaken by the expert on the spot is mentioned. Thus, it is wrong to say that the evidence of police officers does not get corroboration from independent evidence on record. We further find that merely because the punch witnesses do not support the case of the prosecution, the case of the prosecution need not be thrown over board as unreliable. It must be realised that the phenomenon of panch witnesses turning hostile to the prosecution is not unknown and is ever on the increase. It needs hardly to be emphasised that the decision of a case does not depend solely on the question whether the panch witnesses support the prosecution or turn their back on it. If the decision of the case were to depend solely on the testimony of panch witnesses regardless of the evidence of independent witnesses, in theory, it would be giving a right of veto to the panchas so far as the question of culpability of an accused is concerned. If the evidence of police officer is otherwise found to be true and dependable, judicial pragmatism requires that merely because the panchas do not support, it should not be made a ground to discard his evidence. Under the circumstances, the plea that the panch witnesses have not supported the prosecution case and, therefore, the appellant is entitled to acquittal, cannot be upheld. Under the circumstances, the plea that the panch witnesses have not supported the prosecution case and, therefore, the appellant is entitled to acquittal, cannot be upheld. ( 19 ) THE nineth contention, which is raised by the learned counsel for the appellant, is that while recording further statement of the appellant under Sec. 313 of the Code, the contents of the report of the public analyst were not explained to the appellant and, therefore, the report should be ignored while deciding the case of the prosecution against the appellant. With reference to this plea, we notice that all the incriminating circumstances appearing from the evidence of the prosecution witnesses were put to the appellant by the learned Judge of the trial Court. In his statement, the appellant had never claimed that he had not understood the contents of the report. We further find that the report is in Gujarati Language and the same was supplied with other papers while submitting charge-sheet in the case. In his further statement, the appellant had never claimed that the contents of the report which was in Gujarati Language, were not understood by him. In this case, after recording of further statement was over, the appellant had filed written statement as contemplated by the provisions of Sec. 233 (2) of the Code of Criminal Procedure, 1973. In the said written statement also, it was never claimed by the appellant that he had not understood the contents of the report of FSL. On the contrary, we find that in the written statement elaborate submissions are made based on the contents of report of the FSL. Therefore, it is evident that no prejudice is caused to the appellant, though the contents of the report of the FSL were not put to him while recording his further statement under Sec. 313 of the Code. Under the circumstances, the report of fsl cannot be ignored as is suggested by the learned counsel for the appellant while deciding the appeal. ( 20 ) THE tenth submission advanced by the learned counsel for the appellant that imposition of sentence on the appellant on the same day on which the judgment was pronounced by the trial Court is contrary to the law laid down by the Supreme Court in Allauddin Mian and Ors. vs. Sharif Mian and Anr. ( 20 ) THE tenth submission advanced by the learned counsel for the appellant that imposition of sentence on the appellant on the same day on which the judgment was pronounced by the trial Court is contrary to the law laid down by the Supreme Court in Allauddin Mian and Ors. vs. Sharif Mian and Anr. AIR 1989 SC 1456 and, therefore, the sentence imposed should be set aside, has also no merits. In the said decision, the supreme Court has interpreted the provisions of Sec. 235 (2) of the Code of Criminal procedure and ruled that the trial Court after recording conviction, should adjourn the matter and call upon the prosecution as well as defence to place relevant material having bearing on question of sentence before pronouncing sentence. However, we find that third proviso to Sub-sec. (2) of Sec. 309 of the Code of Criminal Procedure specifically provides that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him. It is true that in view of decision of the Supreme Court in Allauddin mian (Supra) if adjournment had been sought for on behalf of the appellant, it should have been granted by the trial Court, but we find that no adjournment was sought on behalf of the appellant for making submissions regarding imposition of sentence. Further, the impugned judgment makes it evident that the appellant had pointed out all the relevant factors, such as, (i) that he was 65 years old, (ii) that he was a poor person, (iii) that while he was in custody, his wife had expired on November 7, 2001, and (iv) that the opium found from him was of small quantity and after considering all those factors, the learned Judge had imposed the punishment on the appellant. Therefore, in our view, imposition of sentence on the appellant on the same day on which the judgment was pronounced by the trial Court, has not prejudicially affected the appellant at all and the sentence imposed is not liable to be set aside on this ground. . ( 21 ) THE eleventh contention raised by the learned counsel for the appellant that carbon copies of documents should not have been admitted in evidence and should not have been relied upon by the trial Court against the appellant, is devoid of merits. . ( 21 ) THE eleventh contention raised by the learned counsel for the appellant that carbon copies of documents should not have been admitted in evidence and should not have been relied upon by the trial Court against the appellant, is devoid of merits. From the depositions of the witnesses, we find that the original copies were produced for perusal of the learned Judge of the trial Court and thereafter carbon copies were tendered in evidence. Therefore, it cannot be said that any illegality was committed by the learned Judge of the trial Court in admitting carbon copies of the documents and placing reliance on them while considering the case against the appellant. ( 22 ) THE twelfth contention that either P. I. Mr. Pathak or police officer in charge of Detention of Crime Branch i. e. , police constable Ganpatsinh Solanki should have prepared an inventory and made an application to the Magistrate for certifying the correctness of the inventory so that it could have been treated as primary evidence and they having failed to do so, an adverse inference should be drawn, is stated to be rejected. We may state that this point was never raised before the trial Court, nor is reaised in the memorandum of appeal. In view of the provisions of Sec. 52 (2), it is evident that an application contemplated by the said sub-section can be made only by the officer referred to in Sub-sec. (1) of Sec. 53. First of all neither P. I. Mr. Pathak, nor PSO Mr. Himatsinh is an officer referred to in Sec. 53 (1), nor there is any evidence on record that with reference to Mr. Pathak or Mr. Himatsinh, the Central government, after consultation with the Government of Gujarat, has issued any notification as is contemplated by the said sub-section. Therefore, there is no substance in the new plea which is raised for the first time during the course of hearing of the appeal and the same is hereby rejected. ( 23 ) HOWEVER, there is substance in the thirteenth submission advanced by the learned counsel for the appellant that the appellant could not have been convicted under Sec. 17 as well as under Sec. 18 of the NDPS Act for having been found in possession of opium without pass or permit. ( 23 ) HOWEVER, there is substance in the thirteenth submission advanced by the learned counsel for the appellant that the appellant could not have been convicted under Sec. 17 as well as under Sec. 18 of the NDPS Act for having been found in possession of opium without pass or permit. It this regard, we notice the Sec. 17 provides punishment for contravention in relation to prepared opium. Prepared opium is opium derivative. Sub-clause (b) of clause (xvi) of Sec. 2 of the Act as signs a special meaning to the words"prepared opium. " Any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked, is prepared opium. The word prepared designates a completed or manufactured article. It does not include an article in the process of preparation. If it can be used at the stage in which it is found, it is a prepared article. The certificate issued by the FSL clearly mentions that the article analysed was opium as defined in the NDPS Act. The word opium is defined in Clause (xv) of Sec. 2 of the Act. As per the said definition, opium means, (a) the coagulated juice of the opium poppy, and (b) any mixture,with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any preparation containing not more than 0. 2 percent of morphine. In view of the contents of the certificate of FSL, we are of the opinion that the appellant could not have been convicted under Sec. 17 of the Act and, therefore, conviction of the appellant under Sec. 17 as well as imposition of sentence, therefor, is liable to be set aside. ( 24 ) THE last submission advanced by the learned counsel for the appellant relates to imposition of sentence. We may state that the NDPS Act, 1985 has been amended by the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001, which has come into force with effect from October 2, 2001. Section 41 of the Amending act provides that notwithstanding anything contained in Sub-sec. We may state that the NDPS Act, 1985 has been amended by the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001, which has come into force with effect from October 2, 2001. Section 41 of the Amending act provides that notwithstanding anything contained in Sub-sec. (2) of Sec. 1, all cases pending before the Court for under investigation at the commencement of the act, shall be disposed of in accordance with the provisions of the Principal Act as amended by this Act and accordingly, any person found guilty of any act punishable under the Principal Act as it stood immediately before such commencement, shall be liable for punishment, which is less than the punishment with which he is otherwise liable at the date of commencement of such offence. In view of the above quoted provision, there is no manner of doubt that the amendments carried out in Sec. 18 of the Act would apply to the facts of the present case because on the date of coming into force of the Amending Act, the trial against the appellant had not been concluded and was pending. As per the amended Sec. 18 where the contravention involves quantity, which is more than small quantity, but less than commercial quantity as defined in the Act, the Court has discretion in the matter of imprisonment which may be imposed, may extend to ten years and with fine which may extend to rupees one lakh. Though the learned Judge of the trial Court has taken into consideration the provisions of the Act as amended by the Amending Act, the learned judge has imposed punishment which was minimum under the umamended provision of the Act. In the facts of the present case, we find that the accused is aged more than 60 years. He was found in possession of 340 grams of opium, which is more than small quantity prescribed under the Act, but less than commercial quantity. Further, while he was in custody, he has lost his wife. The learned counsel for the appellant had stated at the Bar that the appellant is suffering from heart ailment and may not survive long. Under the circumstances, we had requested the learned APP to verify the physical condition of the appellant. The learned APP has produced certificate dated February 6, 2002 issued by Dr. A. J. Dhuvad, Sr. The learned counsel for the appellant had stated at the Bar that the appellant is suffering from heart ailment and may not survive long. Under the circumstances, we had requested the learned APP to verify the physical condition of the appellant. The learned APP has produced certificate dated February 6, 2002 issued by Dr. A. J. Dhuvad, Sr. Medical officer, Jail Dispensary, Central Jail, Ahmedabad for our perusal, wherein it is stated that the appellant is aged 65 years and is suffering from Ischemic heart disease and taking treatment from Civil Hospital, Ahmedabad. Thus, there is no manner of doubt that the appellant is aged 65 years and is suffering from Ischemic heart disease for which he is taking treatment from Civil Hospital, Ahmedabad. Having regard to the totality of the facts and circumstances of the case as well as the object of the Amending Act, we are of the opinion that interest of justice would be served if punishment imposed on the appellant is reduced to that 1-4 RI for six years and fine of Rs. 50,000/i/d. RI for Six months. For the foregoing reasons, the appeal partly succeeds. The conviction of the appellant recorded under Sec. 17 of the NDPS Act as well as punishment imposed for the commission of the said offence is hereby set aside. The conviction of the appellant under Sec. 18 of the NDPS Act is maintained, but he is punished with RI for six years and fine of Rs. 50,000/- i/d. RI for six months for the same. Muddamal to be disposed of in terms of directions given by the learned Judge in the impugned judgment. .