JUDGMENT - CHITRE J.G., J.:---Both these appellants have been convicted and sentenced by the Additional Sessions Judge, Greater Mumbai in Special Case No. 264 of 1999. The appellants have been convicted for committing the offence punishable under provisions of section 20(b)(i) of Narcotic Drugs and Psychotropic Substances Act, 1985 and have been sentenced to undergo R.I. for five years with fine of Rs. 50,000/- each, in default of payment of fine to undergo further simple imprisonment for two months. They have been also convicted for the offence under sections 28 and 30. However, no separate sentence has been passed against them though they have been convicted under those two provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 along with their conviction in view of provisions of section 20(b)(i) of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act for convenience). 2.The appellants are in jail since 30-5-1999. They have undergone more than 50% of the sentence and their lawyers insisted for early hearing of their appeals. In view of the judgment of the Supreme Court in the matter of (Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India and others)1, reported in 1994(6) S.C.C. 731 , (generally known as Common Causes judgment), therein the Supreme Court has observed that the accused who are languishing in jail for a period exceeding half of the punishment provided under the Act either be released on bail or their appeals be heard expeditiously. Instead of releasing them on bail, it is proper in the interest of justice to decide their appeals. 3.The prosecution case in brief is that the officers working in N.C.B., Mumbai got the information from their sources that one associate of Rajendra Singh of Village Lendhora, Taluka Rurki, District Hardwar, (U.P.) and some other persons residing in Maharashtra have entered into a criminal conspiracy and in view of that conspiracy the consignment of ganja had come to Mumbai and one person named Kaushik-accused-appellant in Criminal Appeal No. 839 of 2001 was to come for taking the delivery of the said consignment at Bandra Terminus on 29-5-1999. Accordingly, P.W. Murkunde, P.W. Singh, P.W. Nambudri and their colleagues along with panch witnesses were ambushing at the entrance gate of Bandra Railway Station at about 11.00 a.m. or so on 29-5-1999. Accordingly, P.W. Murkunde, P.W. Singh, P.W. Nambudri and their colleagues along with panch witnesses were ambushing at the entrance gate of Bandra Railway Station at about 11.00 a.m. or so on 29-5-1999. They had the description of said Kaushik as a person of middle height with wheatish complexion. As per the prosecution case when the appellant Kaushik appeared on the scene and was to make entry in the railway station, he was apprehended by the members of the raiding party. They ascertained about his identity and thereafter his person was searched in which an invoice bearing No. 590100 was found. It was for the purpose of taking the delivery of the consignment of ganja dried leaves which were stored in gunny bags and were lying on the railway platform openly. The said invoice was seized by the members of the raiding party, appellant Kaushik was taken to the spot where those gunny bags were lying. Gunny bags were opened. Ganja was taken out. It was tested by test kit and it was revealed to be ganja canopy. Thereafter some interrogations were made to appellant Kaushik and he told that he had arrived in Mumbai on 27-5-1999 and was staying in Shivam Communication Center situated at Bhuleshwar Road which was owned by appellant Kamal Singh. He further told them that he was sent by appellant Kamal Singh to Bandra Railway Terminus for the purpose of taking the delivery of said ganja and, therefore, he had come there. He informed the members of the raiding party that Kamal Singh was also concealing ganja in the said premises. Thereafter the members of the raiding party along with Kaushik went to their Police Office at Ballard Pier area. The superiors were informed about their performance so far and the actions taken by them. There is no information available as to what the members of raiding party did thereafter, say from about 2.00 p.m. or 2.30 p.m. till 11.00 p.m. when the said Shivam Communication Centre was raided by the members of the raiding party along with the same panch witnesses who were with them. The purpose of the raid was informed to appellant Kamal Singh and in presence of the same panch witnesses the said premises were searched. About 391 kgs of ganja was found concealed in the loft of the said premises. 1500 kgs of ganja was found at Bandra Railway Terminus. The purpose of the raid was informed to appellant Kamal Singh and in presence of the same panch witnesses the said premises were searched. About 391 kgs of ganja was found concealed in the loft of the said premises. 1500 kgs of ganja was found at Bandra Railway Terminus. A panchanama was prepared. Both the appellants were not arrested till 4.00 p.m. on 30-5-1999. Thereafter necessary investigation followed and charge-sheet was submitted against the appellants which resulted in the trial which they faced in which they were convicted and sentenced as mentioned above. The appellants are assailing the said judgment and order of conviction and sentence passed by the Special Judge Additional Sessions Judge, Greater Mumbai on various grounds. 4.Shri Ayaz Khan, Counsel appearing for appellant Kaushik, submitted that the order of conviction and sentence passed against the appellant Kaushik happens to be bad in law because when his person was searched on prior information, mandatory provisions of section 50 were not complied with and, therefore, the seizure of the said invoice, the documents which were collected with the seizure and the said ganja lying on the platform of Bandra Railway Terminus cannot be used against him for convicting and sentencing him. Shri Ayaz Khan submitted that the said appellant has been falsely implicated in this case for some other person because even as per prosecution case when he had gone there for collecting the delivery of the said ganja, he could not have been with money more than Rs. 307/- Shri Ayaz Khan submitted that it is next to impossible for anybody to take the delivery of such large consignment with only Rs. 30/-. He submitted that keeping in view this important aspect of the prosecution case, which shatters it from the beginning itself, the prosecution case cannot be believed to be true and cannot be acted upon for basing a conviction. He submitted further that the panchanama has been prepared in English when obviously the appellant was knowing Hindi and was not knowing English very well. He pointed out his endorsement over the alleged statement which has been recorded by the members of the raiding party, of appellant Kaushik in view of provisions of section 67 of the Act. He submitted that it was a farce made for the purpose of procuring the confirmation to their acts and to adduce illegal evidence for getting conviction against him. He submitted that it was a farce made for the purpose of procuring the confirmation to their acts and to adduce illegal evidence for getting conviction against him. Shri Ayaz Khan pointed out the discrepancies in the evidence of prosecution witnesses, improbability and unnaturalness of it and further submitted that Kaushik and Kamal Singh were assaulted by the members of the raiding party and it seems that by torturing them, some information was attempted to be collected against them. He did not admit the statement which has been recorded in view of provisions of section 67 of the Act alleged to have been made by appellant Kaushik but pointed out the injuries sustained by him which was not explained by the prosecution and which was after apprehending him till he was arrested. He prayed for acquittal of the appellant on these and other various grounds. 5.Shri Mundergi, Counsel appearing for Kamal Singh, submitted that when the appellant Kaushik was apprehended and was interrogated initially it was revealed even as per prosecution case that the appellant Kaushik had stayed in Shivam Communication Centre and as per prosecution case appellant Kaushik had given them the information that appellant Kamal Singh had concealed some ganja in the said premises, the warrant for search was not obtained for the reasons best known to the members of the raiding party and the prosecution. He submitted that when the said ganja was seized from Bandra Terminus it was very possible for the members of the raiding party to plant the said ganja in the premises which was searched as in possession of appellant Kamal Singh. He submitted that before raiding the said premises, no search warrant was obtained nor the reasons were recorded which could have shown that the members of the raiding party had reasonable belief that ganja has been concealed in the said premises. 6.Shri Mundargi submitted that when Kaushik was apprehended at 11.00 a.m. on 29-5-1999, taking into consideration one or two hours required for drawing the panchanama, the members of the raiding party had sufficient time to obtain the search warrant for searching the premises alleged to have been possessed by appellant Kamal Singh but for the reasons best known to the prosecution, such search warrant was not obtained. He submitted that there was no reason for the members of the raiding party to wait upto 11.00 p.m. for searching the said Shivam Communication Centre and the time gap in between is very much suspicious. He pointed out the injuries sustained by appellants Kaushik and Kamal Singh and submitted that they have been tortured for the purpose of concocting false evidence against them. In this context, Shri Mundargi submitted that even as per prosecution case appellant Kaushik was staying there at Shivam Communication Centre till 27-5-1999 and it has come in the evidence of P.W. Murkunde that the said Shivam Communication Centre was a shop as well as residential place. Therefore, it was essential to obtain a warrant before searching it after sunset and before sunrise and, therefore, the search of the said premises happened to be illegal and the evidence procured by such illegal search cannot be used against the appellant Kamal Singh. 7.Both Shri Mundargi and Shri Khan submitted that the statement allegedly given by both the appellants in view of the provisions of section 67 of the Act cannot be equate with section 108 of the Customs Act, 1962 (hereinafter referred to as "Customs Act" for convenience) and that cannot be used for basing a conviction as evidence against these appellants. 8.Both Shri Mundargi and Shri Khan submitted that there was no reason for the members of the raiding party to continue to keep with them the said panchas right from 11.00 a.m. or so till 11.00 p.m. The fact that those same panchas were utilised at both the places shows that those two panchas were under their thumb. They further submitted that even then, the panchas did not support the prosecution case and prosecution case is totally resting on the partisan witnesses like the persons of N.C.B. They submitted that though independent witnesses were available at both those places, independent witnesses have not been examined and there is no independent evidence available for supporting the prosecution case. They pleaded for acquittal. They pleaded for acquittal. Both Shri Mundargi and Shri Ayaz Khan placed reliance on the following judgments:--- (1) (Ali Mustaffa Abdul Rahman Moosa v. State of Kerala)2, reported in A.I.R. 1995 S.C. 244, (2) (Bahadur Singh v. State of M.P. and another)3, reported in 2002(1) S.C.C. 606 , (3) (State of Haryana v. Vikram Singh)4, reported in 2002 All.M.R.(Cri.) 897(S.C.), and (4) The judgment of Single Bench of this Court in Criminal Appeal No. 474 of 1999 (Digambar Keru Shirsekar v. The Intelligence Officer, N.C.B., Mumbai)5, dated 14th December, 2001, for their support. 9.Shri Thakur, Counsel appearing for respondent No. 1 N.C.B., submitted that the criticism which has been levelled by both Shri Mundargi and Shri Khan against the prosecution case is substanceless. He submitted that when the description of Kaushik was available with the members of the raiding party, it was necessary for the members of raiding party to go for further detail. He submitted that by sheer experience of the past of the raiding party, Kaushik was picked up exactly and he was accosted and his person was searched. Shri Thakur submitted that as Kaushik was found in public place it was not necessary to comply with the provisions of section 50 and, therefore, the criticism levelled by both Mundargi and Khan is substanceless on this point. He further submitted that when the said invoice was found in the pocket of appellant Kaushik and thereafter ganja was recovered from the platform the burden lay on Kaushik to explain its position in view of provisions of sections 35 and 51 of N.D.P.S. Act. He submitted that presumption was against him and he has not rebutted that. 10.Shri Thakur submitted that act of accosting Kaushik, searching him, thereafter taking him to Ballard Pier Office of N.C.P. and thereafter searching Shivam Tele-Communication Centre in the night was part of the same incident and, therefore, there was no need of obtaining any search warrant and getting different panch witnesses. He submitted that said Shivam Tele Communication Centre was a public place and therefore, the said search was in view of provisions of section 43 of the Act and, therefore, no warrant was necessary nor it was necessary to record the reasons or the grounds of belief. He submitted that said Shivam Tele Communication Centre was a public place and therefore, the said search was in view of provisions of section 43 of the Act and, therefore, no warrant was necessary nor it was necessary to record the reasons or the grounds of belief. He submitted that when ganja was found in the said premises, it was burden on appellant Kamal Singh to explain the position and to rebut the presumption which arose in view of sections 35 and 51 of the Act. 11.Shri Thakur submitted that the discrepancy in the evidence of the prosecution witnesses which has been pointed out by Shri Mundargi and Khan is of no importance and that does not reflect on the prosecution case at all. Shri Thakur submitted that there was no need of taking any independent witness for supporting the prosecution case. He submitted that the conviction and sentence is well justified on the evidence of prosecution witnesses Murkunde, Singh and Namboodri which is creditworthy and steling sound. He placed reliance on the following judgments:--- (1) Criminal Appeal No. 195 of 1997 (Mr. Sylla Dalla v. K.D. Singh another)6, dated 7-2-2002. (2) Criminal Appeal No. 474 of 1999, Dagambar Keru Shirsekar v. The Intelligence Officer and another, dated 14-12-2001. (3) He also placed reliance on the judgment of the Supreme Court in (State of Punjab v. Baldev Singh, etc., etc.,)7, reported in 2000(5) Bom.C.R. (S.C.)236 12.Shri Thakur further submitted that the statements of appellant Nos. 1 and 2 are by themselves sufficient to sustain the conviction because it is equivalent to the statement recorded in view of provisions of section 108 of the Customs Act, 1962. He submitted that the members of the raiding party were authorised to recorded those statements and by following the legal provisions those statements have been recorded. He submitted that there is no substance in the criticism levelled by the appellant in respect of torture of those appellants. Shri Shingarpure during the course of hearing had submitted that he was adopting the arguments which Shri Thakur has advanced. Today Shri Saste is present for the State of Maharashtra and he has reiterated the same stand justifying the order of conviction and sentence. Shri Shingarpure during the course of hearing had submitted that he was adopting the arguments which Shri Thakur has advanced. Today Shri Saste is present for the State of Maharashtra and he has reiterated the same stand justifying the order of conviction and sentence. 13.The Constitution Bench of Supreme Court delivered a detailed judgment in the matter of State of Punjab v. Baldev Singh reported in A.I.R. 1999 S.C. 2378 as the said matter was referred to the said larger Bench for dealing with the relevant points in view of conflicting judgments of various Benches of Supreme Court. While delivering the said judgment following cases have been referred to by the Supreme Court:--- (1) (D.K. Basu v. State of West Bengal)8, 1997(2) Bom.C.R. (S.C.)666 (2) (R. v. Stillman)9, 1997(1) R.C.S. 607 (Supreme Court of Canada); (3) (State of Himachal Pradesh v. Prithi Chand)10, A.I.R. 1996 S.C. 977; (4) (State of Punjab v. Labh Singh)11, A.I.R. 1996 S.C.W. 3444; (5) (Mohinder Kumar v. State, Panaji, Goa)12, A.I.R. 1995 S.C.W. 1208; (6) (Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat)13, A.I.R. 1995 S.C.W. 1852; (7) (Kamlesh Kumar Ishwardas Patel v. Union of India)14, 1995(3) Bom.C.R. 69 (S.C.) : 1995(4) S.C.C. 51 ; (8) (State of Punjab v. Balbir Singh)15, A.I.R. 1994 S.C. 1872; (9) (Sanjay Dutt v. State through C.B.I., Bombay)16, 1995(1) Bom.C.R. (S.C.)181; (10) Ali Mustafa Abdul Rahman Moosa v. State of Kerala, A.I.R. 1995 S.C.244; (11) (C.I.T. v. Sun Engineering Works (P.) Ltd.)17, A.I.R. 1993 S.C. 43; (12) (R. v. Young (Robert))18, 1984(2) All.E.R. 164; (13) (Maneka Gandhi v. Union of India)19, A.I.R. 1978 S.C. 597; (14) (Pooran Mal v. Director of Inspection (Investigation), New Delhi)20, A.I.R. 1974 S.C. 348; 14.After discussing the ratio of those judgments and relevant points of law, in paragraph 55, the Supreme Court has recorded its final conclusions. They are enumerated as mentioned below:--- (1) 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-section (1) of section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing; (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused. (3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of section 50 of the Act. (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concern official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by section 50 at the trial, would render the trial unfair. (5) That whether or not the safeguards provided in section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. The use of evidence collected in breach of the safeguards provided by section 50 at the trial, would render the trial unfair. (5) That whether or not the safeguards provided in section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of section 50, and particularly the safeguards provided therein were duly, complied with, it would not be permissible to cut-short a criminal trial. (6) That in the context in which the protection has been incorporated in section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of section 50 are mandatory or directory, but, hold that failure to inform the concern person of his right as emanating from sub-section (1) of section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law. (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search. (8) A presumption under section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of section 50. An illegal search cannot entitle the prosecution to raise a presumption under section 54 of the Act. (8) A presumption under section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of section 50. An illegal search cannot entitle the prosecution to raise a presumption under section 54 of the Act. (9) That the judgment in Pooran Mals case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search; (10) That the judgment in Ali Mustaffas case correctly interprets and distinguishes the judgment in Pooran Mals case and the broad observations made in Pirthi Chands case are not in tune with the correct exposition of law as laid down in Pooran Mals case. 15.Paragraph 55(1) provides 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-section (1) of section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. Sub-para (2) of paragraph 55 provides that failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused. Sub-para (3) of paragraph 55 provides that a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person during a search conducted in violation of the provisions of section 50 of the Act. 16.In conclusion (4) the Supreme Court held that there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statue scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concern official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by section 50 at the trial, would render the trial unfair. 17.The 5th conclusion provides that whether or not the safeguards provided in section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut-short a criminal trial. Conclusion 8 provides that a presumption under section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of section 50. An illegal search cannot entitle the prosecution to raise a presumption under section 54 of the Act. An illegal search cannot entitle the prosecution to raise a presumption under section 54 of the Act. Conclusion No. 9 provides that the judgment in Pooran Mals case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search; 18.In conclusion No. 10 Supreme Court confirmed the ratio of the judgment of the Supreme Court in Ali Mustaffas case on which the Counsel appearing for the appellants have placed reliance. 19.In Ali Mustaffas case (supra) where a Police Officer on receiving information that a person is in possession of contraband, wants to subject him to search, it is the duty of the Police Officer to give option to the person as to whether he desired to be searched in the presence of a Gazetted Officer or a Magistrate as envisaged by section 50. The failure to provide that option to the accused vitiates his conviction. The provisions of section 50 are mandatory, the non-compliance whereof vitiates the conviction. It is not necessary that the person who is about to be searched should by himself make a request. 20.In the said case Supreme Court further held that a contraband seized as a result of illegal search or seizure, cannot be used to fasten the liability of unlawful possession of the contraband on the person from whom the contraband had allegedly been seized in an illegal manner. "Unlawful possession" of the contraband is the sine qua non for conviction under the N.D.P.S. Act and that factor has to be established by the prosecution beyond a reasonable doubt. Indeed the seized contraband is evidence but in the absence of proof of possession of the same, an accused cannot be held guilty under the N.D.P.S. Act. 21.According to this Court, the judgment of the Supreme Court Constitution Bench in Baldev Singhs case (supra) is the final word on the point because it is a detailed judgment and various facets dealing with the point have been considered by the Supreme Court in view of the judgment of foreign courts and various judgments of Supreme Court. 21.According to this Court, the judgment of the Supreme Court Constitution Bench in Baldev Singhs case (supra) is the final word on the point because it is a detailed judgment and various facets dealing with the point have been considered by the Supreme Court in view of the judgment of foreign courts and various judgments of Supreme Court. Therefore, the present case will have to be also assessed keeping in view the judgment of the Supreme Court in Baldev Singhs case (supra). 22.Shri Thakur submitted that the search of appellant Kaushik was in public place. So also the search of Shivam Tele Communication Centre was the search of a public place and, therefore, the members of the raiding party were not obliged to comply with the provisions of section 50 of N.D.P.S. Act. This Court cannot agree with him for the reasons stated hereunder. The search of the appellant Kaushik as well as appellant Kamal Singh was on prior information. The prior information was received by P.W. Murkunde that a person named Kaushik was to come to take delivery of consignment of ganja at Bandra Terminus. His description was also given and what was intended to be done was the search of his person and in fact his person was searched in the presence of panch witnesses and an invoice has been seized from his pocket as per the prosecution case. At this juncture what section 50 provides is to be seen. So far as sub-section (1) is concerned, it provides that a person duly authorised under section 42 if wants to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. Therefore, the argument of Shri Thakur which has been adopted by the State of Maharashtra that the search of appellant Kaushik was in pursuance of section 43 holds no substance. Even in that case also compliance of important provisions of section 50 was necessary. Section 50 sub-section (1) covers section 41, section 42 and section 43 also. Shri Thakur submitted that the consignment was lying on Bandra Railway Station platform and it was in public place and Shivam Tele Communication Centre, according to Shri Thakur, happens to be a public place. Section 50 sub-section (1) covers section 41, section 42 and section 43 also. Shri Thakur submitted that the consignment was lying on Bandra Railway Station platform and it was in public place and Shivam Tele Communication Centre, according to Shri Thakur, happens to be a public place. But even then this argument fails because what was searched was the person of appellant Kaushik and even the statement made by P.W. Murkunde shows that Shivam Tele Communication Centre was shop as well as a residential place. Furthermore, it has come in the prosecution evidence itself that appellant Kaushik was staying there on 27-5-1999 and 28-5-1999 and upto 11.00 a.m. of 29-5-1999. All these things make out that it was not a shop purely but it was a residential place also and it was searched after sunset and before sunrise at 11.00 p.m. undisputedly. In such situation inference in favour of accused will have to be preferred. 23.When present appellant Kaushik was searched, the said invoice was found in his possession and as per prosecution case investigation revealed that according to the information given by appellant Kaushik appellant Kamal Singh was possessing ganja in his Shivam Tele Communication Centre. Here, it is pertinent to note that it has been the submission of Shri Mundargi and Shri Khan that there has been unexplained shortage of ganja found as per prosecution case on railway platform of Bandra Terminus and the ganja as per the information which Shri Murkunde got. According to the information which Shri Murkunde got, which according to Shri Mundargi was the sure information, ganja which was to be taken in possession by appellant Kaushik was 17 Quintals and 20 kgs. Ganja allegedly seized at the instance of appellant Kaushik happens to be 15 Quintals and 42 kgs. Where these two quintals and 18 kgs. of ganja has gone? Shri Mundargi has submitted that the said ganja must have been planted for showing that it has been seized from Shivam Tele Communication Centre. Both Shri Mundargi and Shri Khan indicated that the other ganja would be used in some other case. Let that be as it is. After all that is a submission advanced on behalf of the defence accused. But fact remains as to whether these two quintals and 18 kgs. of ganja has gone? Prosecution has got no satisfactory explanation about that. Let that be as it is. After all that is a submission advanced on behalf of the defence accused. But fact remains as to whether these two quintals and 18 kgs. of ganja has gone? Prosecution has got no satisfactory explanation about that. Furthermore, most unnatural and improbable thing which has surfaced in this case is that when the prosecution says that the appellant Kaushik had gone there for the purpose of taking the delivery of consignment of ganja and he was having only Rs. 30/-. Shri Thakur submitted that he had come to Bandra after making the enquiry at Grant Road Office and after knowing that the said consignment has been unloaded at Bandra Railway Platform. Even in that case also, he would have been with sufficient amount of money for the purpose of taking delivery. Otherwise, there was no need for him to go there for making the enquiry and attract the attention of the officers of N.C.B. Why offender would invite such risk? It seems to be totally improbable. 24.While considering the point whether the prosecution has proved its case or not, some important points of probability have also to be considered because they go to the root of the case. Here, at this juncture it is pertinent to note that when he was not to take the delivery of the consignment, he would not come for the purpose of making the enquiry as suggested by Shri Thakur and expose himself to the eyes of the concerned detection branch. If that is not accepted then the other inference will have to be drawn that he had come there for the purpose of taking the delivery and after getting the information that the consignment has been unloaded at Bandra Terminus and not at Bombay Central Railway Station as suggested by Shri Thakur. In that case then it will have to be presumed that he has taken sufficient information and instructions from Grant Road office. In that eventuality, he would be with sufficient money so as to pay the railway charges for the purposes of taking the consignment and he would have been also with vehicle for the purpose of carrying the said consignment to some destination. It is the prosecution case that he was to give a telephonic message to appellant Kamal Singh. In that eventuality, he would be with sufficient money so as to pay the railway charges for the purposes of taking the consignment and he would have been also with vehicle for the purpose of carrying the said consignment to some destination. It is the prosecution case that he was to give a telephonic message to appellant Kamal Singh. When he was to give that telephonic message then also he would have been well equipped with money, coolies and the vehicle but that is not so as indicated by the prosecution case. 25.That the point which has been pushed forward very emphatically by the Counsel appearing for the appellants in respect of unnecessary delay has to be also considered at this juncture. According to the prosecution case, appellant Kaushik was apprehended at the Bandra Terminus at about 11.00 a.m. Giving latitude to the prosecution, the work of preparing panchanama would have been completed at 2 O clock. Then the officers of the raiding squad would have been in a position to arrest appellant Kaushik because at that time they were knowing that he had committed a cognizable offence punishable under the provisions of the N.D.P.S. Act, a question arises as to why then he was not arrested. It also again surfaces as another important topic and that is of not obtaining a search warrant for the purposes of searching the premises of Shivam Tele Communication. It has come in the evidence that telephone facilities were available to the prosecution witnesses examined in this case for the purposes of asking their superiors. While preparing the panchanama at Bandra Terminus, they could have made arrangement for obtaining the search warrant because according to the prosecution case at that time they were having concrete information with them that appellant Kaushik was present for the purpose of accepting the delivery of the said consignment of ganja for appellant Kamal Singh. But it was not done. There are cases in which the warrants are not obtained but the reason for that happens to be that the fear lingering in the mind of the raiding party that while obtaining the warrant, the accused may get the opportunity of escaping. But it was not done. There are cases in which the warrants are not obtained but the reason for that happens to be that the fear lingering in the mind of the raiding party that while obtaining the warrant, the accused may get the opportunity of escaping. But in this case that was not there because the time which was available with them was more than sufficient and secondly there was a telephonic talk between appellant Kaushik and Kamal Singh and that controlled telephonic conversation would have created confidence in the mind of the appellant Kaushik that there was no reason to abscond. Therefore, absence of search warrant speaks lot many things against the prosecution relating to its credibility when the search has been taken at 11.00 p.m. and there is no explanation as to what those prosecution witnesses were doing in the mean while. Here the submissions advanced by the Counsel appearing for the appellant in respect of torture needs to be considered. Otherwise that puts the entire prosecution case in domain of suspicion and unreliability. 26.Obviously, Shivam Tele Communication Centre happens to be situated in densely populated area. Therefore, there should not have been apprehension lingering in the mind of the raiding party that they would not be getting the presence of the independent witnesses. They could have got the independent witnesses for the purpose of searching the house of the appellant Kamal Singh even in such odd hour of the night but very strangely the members of the raiding party carried the same set of witnesses. There could not be the other inference than one that those panch witnesses were specially taken for the same purpose as they were the men of confidence of the members of the raiding party. But even then those panch witnesses have failed the prosecution and now in this case prosecution is totally dependent on the evidence of the departmental witnesses. 27.The law does not say that departmental witnesses should be disbelieved only because they happen to be persons belonging to the department interested in prosecuting the accused and biding for their conviction. But that makes the Court cautious and that creates the need of scanning the evidence carefully and cautiously. Here a point which is to be considered is whether these witnesses were law abiding while collecting the evidence? But that makes the Court cautious and that creates the need of scanning the evidence carefully and cautiously. Here a point which is to be considered is whether these witnesses were law abiding while collecting the evidence? The answer would be no because they did not comply with provisions of sections 41, 42 and section 50. They did not arrest both appellants Kaushik and Kamal Singh at appropriate time. Though appellant Kaushik was apprehended at 11.00 p.m. he was not arrested till 4.00 p.m. on 30-5-1999. The house of appellant Kamal Singh was searched at 11.00 p.m. He was not arrested till 4.00 p.m. on 30-5-1999. Why there was delay in arresting them? for whom the members of the raiding party were waiting? Whether they were making the search of that Rajendra Singh? Even in this case, the answer is "No". Because, that Rajendra Singh has not been searched with true spirit. Only a letter has been sent to the concerned Police Station for the purpose of finding out whereabouts of said Rajendra Singh. That does not indicate a search in real spirit. It seems to be for the purpose of throwing out the possibility of blame and nothing more. 28.Why these two persons were not arrested is the big question and at this juncture the submissions advanced by the lawyers of the appellants need to be considered. They submitted that these two persons were tortured for the purpose of obtaining a statement which prosecution wanted to show as a piece of evidence against the appellants. This submission cannot be ignored because the important provisions of law were not followed. Therefore, the investigating agency must have been shaken in the mind about the creditworthiness of the evidence so far collected by them. At this juncture, it is necessary to note the submission which has been advanced by Shri Mundargi that is after one statement of appellant Kaushik was recorded, another statement was recorded by another officer and that was creating a big discrepancy about the explanation brought forth in respect of the injuries which were apparently seen on the body of the appellants. First statement was explaining the injury by saying that he had a fall from the scooter and another statement was explaining the injuries by saying that the said appellant was required to sleep in the night on the floor of the Cell of Azad Maidan Lock Up. First statement was explaining the injury by saying that he had a fall from the scooter and another statement was explaining the injuries by saying that the said appellant was required to sleep in the night on the floor of the Cell of Azad Maidan Lock Up. It was a lame attempt to show that on account of the sleeping on the floor, the said appellant was having strained muscles on lumber portion and the back. In fact for such ailments doctors generally do advice to sleep on the flat surface. That could not have been normally a ground of limping. But that has been suggested. That may be the excuse of ignorance otherwise that cannot be properly explained but with one hypothesis and that is indicating the substance in the torture theory which has been submitted on behalf of the appellants. While considering the acceptability of the statement recorded in view of provisions of section 108 of Customs Act, the Supreme Court has observed in a case that such statement is admissible in evidence, can be considered also as evidence but the Court has to satisfy itself that it has been recorded after taking care that it is not the result of inducement, coercion and torture. For that purpose, the investigating agency must have thought it proper to bring some statements for the purpose of explaining the injuries. But while doing so, they forgot that those injuries were external injuries and were capable of seeing by naked eyes and were pertaining to period between accused being apprehended and arrested. 29.Shri Thakur submitted that the said statement has been recorded in view of provisions of section 67 of the Act and, therefore, that be treated to be evidence and should be treated as a basis for convicting the appellants. This Court is not impressed because the main purpose of section 67 is to enable such Investigation Officer to get the information of offences punishable under the provisions of the N.D.P.S. Act. That is not meant for recording a confession in a couching way by using couching words and couching sentences. Here, in this case, the statements of the appellants recorded in view of section 67 of the Act are indirectly confirming the activities of the members of the raiding party in respect of searches, seizures and collection of evidence in respect of possession of narcotic drugs as alleged. Here, in this case, the statements of the appellants recorded in view of section 67 of the Act are indirectly confirming the activities of the members of the raiding party in respect of searches, seizures and collection of evidence in respect of possession of narcotic drugs as alleged. In fact, it is to be proved by the prosecution by adducing cogent, reliable and independent evidence. It cannot be done by taking the statements of the accused in the form of admissions. Instead of helping the prosecution it creates a doubt or suspicion about the genuineness of the intention of the investigating agency. It smells of suspicion and casts doubt against the way followed by the investigating agency for collecting the evidence against the appellants. 30.There was no purpose of recording the statement of appellant Kamal Singh because in fact information was gathered by recording the statement of appellant Kaushik. From the statement of appellant Kaushik it appears that the investigating agency was knowing about the said Kamal Singh, about the place from where the said consignment was dispatched, the place where that consignment was to reach the person who was to come for taking the consignment and the person for whom he was to come for that consignment and the place where that consignment was to be stored. What more information was to be obtained? The purpose was to get the confirmation about the activities of the members of the raiding party so as to ease out the prosecuting agency in the work of proving their case and exonerating themselves from the lawful burden of proving their case. Such activities or atrocities have to be deprecated and, therefore, in this case such evidence has to be discarded. In view of the observations of the Supreme Court in Baldev Singhs case as pointed out in last conclusion, the evidence which has been collected by following unlawful means, illegal methods has to be discarded if the prosecution cannot prove by other evidence. So far as that other evidence is concerned, prosecution has miserably failed to place the said statements on record and in the midst of the injuries sustained by both the appellants and delay caused in arresting them and their absence from the scene from the moment of apprehending, appellant Kaushik and raiding the Shivam Tele Communication Centre. So far as that other evidence is concerned, prosecution has miserably failed to place the said statements on record and in the midst of the injuries sustained by both the appellants and delay caused in arresting them and their absence from the scene from the moment of apprehending, appellant Kaushik and raiding the Shivam Tele Communication Centre. 31.Thus, in this case prosecution has miserably failed to prove the guilt of the appellants by the evidence on record. The learned trial judge has not considered the evidence in view of these glaring infirmities which are present in the prosecution case and evidenced right from its inception. The learned trial Judge was bound to consider this important facet of the prosecution case and glaring infirmities in the evidence of the departmental witnesses examined for the purpose of establishing the guilt of these appellants. The learned trial Judge should have adverted his attention towards those missing 2 quintals and 18 kgs of ganja and noticing that 391 kgs of ganja was alleged to have been found in Shivam Tele Communication Centre. Still some ganja is remaining to be satisfactorily accounted for. The learned trial Judge should have also considered the presence of injuries on the persons of the appellants and the lapse on the part of the investigating agency in arresting them though there was sufficient material available for arresting them. As the learned Judge has not adverted its judicial mind to all these glaring defects in the prosecution case, he committed the error in recording his findings against the appellants. 32.Thus, keeping in view the judgment of the Supreme Court in Baldev Singhs case (supra) which has considered all the cases which have been cited for strengthening the arguments by the Counsel appearing for the appellants and Counsel appearing for the respondents, this Court comes to the conclusion that the order of conviction and sentence recorded against the appellants needs to be set aside as it is incorrect and illegal. Thus, appeals will have to be allowed and the appellants will have to be acquitted. Thus, the order of conviction and sentence passed against the appellants stand set aside and the appellants are acquitted. They be set at liberty if not required for any other enquiry, investigation, proceeding or trial. They be also not released if they are convicted for other offence and lingering in the jail for that. Thus, the order of conviction and sentence passed against the appellants stand set aside and the appellants are acquitted. They be set at liberty if not required for any other enquiry, investigation, proceeding or trial. They be also not released if they are convicted for other offence and lingering in the jail for that. No interference in respect of the order touching the disposal of the property. 33.Thus, both these appeals are disposed of. 34.Parties to act on an ordinary copy duly authenticated by the Private Secretary of this Court. Appeal allowed. -----