JUDGMENT Dipak Misra, J.—In this appeal preferred u/s 374(2) of the Code of Criminal Procedure (in short 'the Code') the accused-appellant (hereinafter referred to as 'the accused') has called in question the legal validity of the judgment passed by the learned Sessions Judge, Hoshangabad in Sessions Trial No. 144/1994 whereby he has convicted the accused, Shankarlal for the offences punishable under Sections 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity 'the Act') and sentenced him to undergo rigorous imprisonment for 4 years and to pay a fine of Rs. 3,000/-, in default, to suffer further simple imprisonment of six months on first count and to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1 lakh, in default, to suffer further simple imprisonment of two years on the second score, with a further stipulation that both the sentence would run concurrently. 2. Prosecution story, in brief, is that in Sardar Ward, Pipariya, Smt. Urmila Bai (PW-2) owns a house and the accused had taken two rooms of the said house on rent at the rate of Rs. 400/- per month. On 13-4-1994 the Station House Officer of the Police Station, Pipariya got an information from the informer that the accused-Shankarlal, who was tenant in the house of Smt. Urmila Bai, two persons belonging to Tamilnadu had come over there and the accused was in possession of 'Ganja'. It was also informed to the officer concerned that arrangements were being made for supply of 'Ganja'. Upon obtaining the aforesaid information the Station House Officer got the same recorded under Ex. P/4-A. Being satisfied with the information the Station House Officer went with a raiding party to the house of Shankarlal. The Station House Officer had also informed the Tahsildar, Shri M.L. Urvasha (PW-6), a gazetted officer to the place of search. Accordingly the said Tahsildar reached at the Police Station. The house of the accused was searched in presence of 'Panch' witnesses, namely, Gokul Prasad Sharma and Jagdish Prasad and at that juncture the accused along with co-accused persons were found present. A suitcase containing 15 kgs. of 'Ganja', one 'Attachi' containing 10 kgs. of Ganja, another carton containing 15 kgs. of Ganja and two other containing 21 kgs. of 'Ganja', thus in toto, 61 kgs. of 'Ganja' were seized from the room in question. A suitcase containing 15 kgs. of 'Ganja', one 'Attachi' containing 10 kgs. of Ganja, another carton containing 15 kgs. of Ganja and two other containing 21 kgs. of 'Ganja', thus in toto, 61 kgs. of 'Ganja' were seized from the room in question. A 'Jimmanama' was prepared, vide Ex. P/l. Thereafter the matter was noted down, vide Ex. P/5. The Investigating Officer prepared the FIR, Ex. P/6 at the spot and took samples from various containers. After complying with all the formalities they were sent for forensic test. The test was conducted and the test report was sent which indicated that the seized article was 'Ganja'. The test report is marked as Ex. P/9. After completing all other necessary formalities charge sheet was filed against all the accused persons u/s 20(b)(i) and further u/s 25 of the Act against the Appellant herein. 3. The accused admitted that he had taken the house on rent but controverted the factum of seizure of 'Ganja' from his custody. All the accused persons abjured the guilt and pleaded for trial. The learned trial Judge addressed himself mainly into three aspects, namely, whether the seized article was 'Ganja'; whether the seized 'Ganja' was found from the custody of the accused persons; and whether the accused-Shankarlal was using the premises for the purposes of dealing with such psychotropic substances. 4. The prosecution to prove its case examined as many as six witnesses. PW-1 is Gokul Prasad, a witness to seizure; PW-2, Smt. Urmila Bai, landlady of the premises in question; PW-3, Jagdish Prasad, another witness to seizure; PW-4, Shiv Bahadur Singh, the Head Constable who was a member of the raiding party; PW-5, Ganesh Prasad, a formal witness; and PW-6, Mr. M.L. Urvasha, who was Tahsildar at the relevant time and in whose presence search had taken place. It is apposite to mention here the Station House Officer, Shri Naval Singh expired after the date of occurrence and his signatures on the documents were proved by Shiv Bahadur, PW-4, the Head Constable. 5. The defence chose not to examine any witness. 6. The learned Trial Judge scanned the evidence and came to hold that the item which was seized was 'Ganja'; the said 'Ganja' was seized from the custody of the accused persons; and the premises which was in possession of Shankarlal was utilised and used for commission of the offence in question. The defence chose not to examine any witness. 6. The learned Trial Judge scanned the evidence and came to hold that the item which was seized was 'Ganja'; the said 'Ganja' was seized from the custody of the accused persons; and the premises which was in possession of Shankarlal was utilised and used for commission of the offence in question. Being of this view the learned trial Judge convicted the accused Appellant and sentenced him as has been indicated hereinbefore. 7. I have heard Miss Kalpana Gupta, Learned Counsel for the Appellant and Mr. Dinesh Joshi, learned Panel Lawyer for the State. It is submitted by Miss Gupta that the learned trial Judge has fallen into error by opining that the accused was in possession of the 'Ganja' and used the premises for commission of the offence. It is canvassed by her that the evidence brought on record is quite sketchy to be given credence to and said evidence, being not beyond reproach, should not have relied upon by the learned trial Judge. As the learned trial Judge has come to hold that the prosecution had failed to prove the guilt beyond reasonable doubt against the accused as such he should have acquitted him. Miss Gupta, Learned Counsel for the accused submitted that the provisions of search and seizure have not been complied with in entirety and, therefore, the trial is vitiated. Learned Counsel has placed reliance on the decisions rendered in the case of Abdul Rashid Ibrahim Mansuri v. State of Gujarat, AIR 2000 SCW 375 and Koluttumottil Razak Vs. State of Kerala, 8. Combating the aforesaid submissions it is urged by Mr. Joshi, learned Panel Lawyer for the State that the learned Trial Judge has scrutinized the evidence in detail and has found that the accused-appellant was in possession of the 'Ganja' in question and he was the occupant of the premises where the transaction took place. It is put forth by him that all the formalities of search and seizure were complied with and, therefore, the order of conviction is unassailable. 9. To appreciate the rival submissions raised at the Bar, I have carefully perused the impugned judgment. The Learned Counsel for the parties have taken me through the oral and documentary evidence brought on record. As far as the finding with regard to the nature of the seized article is concerned. 9. To appreciate the rival submissions raised at the Bar, I have carefully perused the impugned judgment. The Learned Counsel for the parties have taken me through the oral and documentary evidence brought on record. As far as the finding with regard to the nature of the seized article is concerned. It is noticeable that the report sent by the Forensic Laboratory, Ex. P/9, clearly shows that the article which was sent for examination was 'Ganja'. The prosecution witnesses have also stated with enormous clarity that illicit article which was seized was sent to the Forensic Laboratory, Gwalior. The defense plea is that the article sezied and the article examined was exchanged, was not accepted by the learned trial Judge. To appreciate the aforesaid stand, I have also carefully scrutinized the evidence brought on record and I find such a suggestion is sans substance. Nothing has been brought on record to show that the article which was seized was not sent for chemical examination. Nothing has been put forth that there was any delay or gap. The 'Panch' witnesses have stood embedded in their version. Thus, I find the conclusion arrived at by the learned trial Judge on this score is absolutely impeccable. 10. The next aspect which requires to be considered is whether there has been seizure of the illicit article from the accused and his accomplice. On a scrutiny of the evidence of PW-4; it is quite clear that he was a member of the raiding party and had accompanied the Station House Officer Late Shri Raghuvanshi. He has deposed that he was acquainted with the signature of Late Shri Raghuvanshi. The document of seizure has been proved as Ex. P/2 on which signature of Late Raghuvanshi is there. He has expressly stated that the room of Shankarlal was searched and from underneath his cot two suitcases, one packet, two bags and one carton were seized. The said articles find mention in Ex. P/l. There is corroboration on this score from the evidence of Gokul Prasad, PW-2; he is a 'Panch' witness and he has not shown any kind of transgiversation. His testimony has also received corroboration from Jagdish Prasad, PW-3. It is also appropriate to mention here that M.L. Urvasha, PW-4, a gazetted officer was present during the seizure and nothing has been elicited in the cross-examination to make his evidence impeachable. His testimony has also received corroboration from Jagdish Prasad, PW-3. It is also appropriate to mention here that M.L. Urvasha, PW-4, a gazetted officer was present during the seizure and nothing has been elicited in the cross-examination to make his evidence impeachable. These witnesses have stood absolutely firm in their version and in the cross-examination nothing substantial has been brought out not to lend credence to their deposition. 11. Miss Gupta, Learned Counsel for the Appellant made enormous endeavour to show that the 'Panch' witnesses were interested witnesses and, therefore, they should be not believed. To appreciate the aforesaid submission of the Learned Counsel for the accused, I have perused the evidence of the 'Panch' witnesses with great care and caution and bestowed my anxious consideration to appreciate the same. On a careful scrutiny, I do not find there is anything to disbelieve them. May be at one point of time Gokul Prasad was a member of a police staff, but it is also in his evidence that he had been superannuated a decade back. That apart, there is no reason to disbelieve the version of an ex-policeman, if it is otherwise credible. Nothing has been pointed out by Miss Gupta to disbelieve the version of the gazetted officer, PW-4. The entire search and seizure had taken place in his presence. In view of their testimony and there being nothing on record to disbelieve them, I am of the considered view the finding recorded by the learned trial Judge that illicit article was seized from the accused and his accomplice, is absolutely impeccable and deserve the stamp of approval of this Court. 12. The Learned Counsel for the accused has referred to the decisions to show that there has been non-compliance of Sections 42 and 43 of the Act. In the case of Abdul Rashid Ibrahim Mansuri (supra) their Lordships referred to the decision rendered in the case of State of Punjab Vs. Baldev Singh, etc. etc., , wherein the decision rendered in the case of State of Punjab Vs. Balbir Singh, was dealt with. Keeping the said decisions in view their Lordships in paragraph No. 17 held as under: 17. When the same decision considered the impact of non-compliance of Section 50 it was that "it would affect the prosecution case and vitiate the trial". etc., , wherein the decision rendered in the case of State of Punjab Vs. Balbir Singh, was dealt with. Keeping the said decisions in view their Lordships in paragraph No. 17 held as under: 17. When the same decision considered the impact of non-compliance of Section 50 it was that "it would affect the prosecution case and vitiate the trial". But the Constitution Bench has settled the legal position concerning that aspect in State of Punjab v. Balbir Singh (supra), the relevant portion of which has been extracted by us earlier. We do not think that a different approach is warranted regarding non-compliance of Section 42 also. If that be so, the position must be the following: If the officer has reason to believe from personal knowledge or prior information received from any person that any narcotic drug or psychotropic substance (in respect of which an offence has been committed) is kept or concealed in any building, conveyance or enclosed place, it is imperative that the officer should take it down in writing and he shall forthwith send a copy thereof to his immediate official superior. The action of the officer, who claims to have exercised on the strength of such unrecorded information would become suspect, though the trial may not vitiate on that score alone. Nonetheless the resultant position would be one of causing prejudice to the accused. After laying down the law their Lordships in paragraph 23 expressed thus: 23. In this case non-recording of the vital information collected by the Police at the first instance can be counted as a circumstance in favour of the Appellant. Next is that even the information which PW-2 recollected from memory is capable helping the accused because it indicates that the real culprits would have utilized the services of an auto-rickshaw driver to transport the gunny bags and it is not necessary that the auto-rickshaw driver should have been told in advance that the gunny bags contained such offensive substance. The possibility is just the other way around that the said culprits would not have disclosed that information to the auto-rickshaw driver unless it is shown that he had entered into a criminal conspiracy with the other main culprits to transport the contraband. Prosecution did not adduce any evidence to show any such connivance between the Appellants and the real culprits. Prosecution did not adduce any evidence to show any such connivance between the Appellants and the real culprits. There is nothing even to suggest that those culprits and the Appellants were close to each other, or even known to each other earlier. Yet another circumstance discernible from the evidence in this case is that the police had actually arrayed two other persons as the real culprits and made all endeavour to arrest them, but they absconded themselves and escaped from the reach of the police. In that background their Lordships found the accused was not guilty and acquitted him. 13. In the case of Koluttumottil (supra) the Apex Court referred to the case of Abdul Rashid Ibrahim Mansuri (supra) and in paragraphs 6 and 7 held as under: 6. It is a mandate of Section 42 of the Act that when an officer referred to in Sub-section (1) thereof has reason to believe from personal knowledge or information given by any person and taken down in writing (emphasis supplied) 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. 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. A three-judge Bench of this Court held in Abdul Rashid Ibrahim Mansuri v. State of Gujarat that the non-compliance with the requirement of Section 42(1) and (2) would render the resultant search and seizure suspect, though that by itself may not vitiate the proceedings. 7. In the present case, unfortunately, apart from the evidence of the police officers there is absolutely no independent evidence to ensure confidence in our mind that the search was in fact conducted by PW-1 as he has claimed. As his evidence is required to be approached with suspicion from independent sources that is lacking in this case. It is apposite to mention here that their Lordships also noted that search was not conducted in presence of any officer or a Magistrate as envisaged in Section 50 of the Act. 14. The present factual matrix has to be tested on the anvil of the aforesaid enunciation of law. It is apposite to mention here that their Lordships also noted that search was not conducted in presence of any officer or a Magistrate as envisaged in Section 50 of the Act. 14. The present factual matrix has to be tested on the anvil of the aforesaid enunciation of law. In the case at hand it has been clearly deposed by the PW-4 that Late Shri Raghuvanshi has recorded the information received by the informer. The said document has been brought on record as Ex. P/4-A. Nothing has been brought out from the side of the defense to discard the said document. In addition to that the presence of the Tahsildar a gazetted officer at the time of search and seizure makes the prosecution story very authentic and hence, I am of the considered view that the decisions cited by the Learned Counsel for the accused are distinguishable. Hence, I unhesitatingly concur with the finding recorded by the learned trial Judge that illicit article was seized from the custody of the accused as well as the accused persons. 15. The next facet of argument relates to conviction of the accused u/s 25 of the Act. Section 25 of the Act reads as under: 25. Punishment for allowing premises, etc. to be used for commission of an offence.- Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakhs rupees. It is brought out in notice that the accused had taken the premises on rent. The same has been categorically stated by the landlady and other witnesses that the accused had taken the house on rent. She has categorically stated that she had no knowledge what business was carried on by the accused-Shankarlal. She has deposed that the accused had himself approached to take the house on rent. The same has been categorically stated by the landlady and other witnesses that the accused had taken the house on rent. She has categorically stated that she had no knowledge what business was carried on by the accused-Shankarlal. She has deposed that the accused had himself approached to take the house on rent. True it is this witness has been declared hostile as far as the seizure part is concerned but as far as the tenancy is concerned, she has not disputed. From the evidence of PW-3, who is a young man of 18 years and a student it is also apparent that other co-accused persons were present in the premises in question. He has also stated that they had taken two rooms on rent from Urmila as they had to appear in the examination. If the entire evidence is appreciated in a studied manner, there remains no scintilla of doubt that the Appellant was the person occupying the premises in question. On a reading of Section 25 of the Act requirement is that the occupant must knowingly permit it to be used for the commission by any other person of an offence punishable under any provision of the Act. In the case at hand, the other co-accused persons belonged to the State of Andhra Pradesh. They had not been explained any plausible explanation in what connection that they were present in the premises with the accused. Their presence in the premises has been accepted by the accused. As I have already concurred with the finding relating to seizure of 'Ganja' from the premises in question, it goes a long way to show that the transaction had taken place in the house in question. It is not a small quantity which the owner can say that he was not aware of. The seized quantity is 61 kgs. of 'Ganja' and definitely it can be held that the accused was dealing with this and indubitably, he was a party to this transaction. Thus, his culpable mental state cannot be ignored. In this connection I may profitably refer to Section 35 of the Act, which reads as under: 35. Presumption of culpable mental state. of 'Ganja' and definitely it can be held that the accused was dealing with this and indubitably, he was a party to this transaction. Thus, his culpable mental state cannot be ignored. In this connection I may profitably refer to Section 35 of the Act, which reads as under: 35. Presumption of culpable mental state. - (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defense for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation - In this section "culpable mental state" includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability. True it is not a 'presumption juris et de jure' an irrebuttable presumption. It is a rebuttable presumption but the accused has not been able to rebut the same in any manner. Thus, in my considered view, the maxim 'presumptio juris tantum' would be attracted. Hence, in the backdrop of the evidence brought on record, I am of the considered opinion, the prosecution has been able to prove to the hilt that the accused committed the offence punishable u/s 25 of the Act. 16. In view of my preceding anlaysis, I do not find any reason to interfere in the impugned judgment. Resultantly, the judgment of conviction and order of sentence passed by the learned trial Judge are hereby affirmed and the appeal stands dismissed. Final Result : Dismissed