JUDGMENT 1. - This Criminal Appeal by appellant-Guru Dev Singh sent through, Superintendent Central Jail, Jaipur arises out of the judgment and order dated 26.9.2000 passed by the learned Special Judge NDPS Cases, Jaipur by which the learned Special Judge has convicted the appellant for offence under section 8/21 of the Narcotic Drugs and Psychotropic Substances Act (for short 'the NDPS Act') and sentenced him to undergo rigorous imprisonment for 10 years with a fine of Rs. One lac, in default thereof, to further undergo simple imprisonment for two years. 2. Briefly stated the facts of the case are that on 15.7.1999 at 12.00 noon PW-1 Banwari Lal, Sub-Inspector produced the appellant before the SHO of Police Station Sanjay Circle, Jaipur and submitted a written report Ex.P/1, alleging therein that while he was on petrolling duty he received information that the appellant was standing near Mayank Cinema and was in search of some customer to sell smack. On seeing the police, the appellant tried to escape, but the Sub-Inspector with the held of a constable managed to apprehend the appellant. On being asked, the appellant disclosed his identity. When he asked the accused to accompany him to the Police Station, the accused disclosed that he was having small quantity of smack and requested to settle the matter then and there. 3. PW-8 Radhey Shyam, SHO gave requisition to a constable and directed him to bring independent witnesses, who in turn brought PW-4 Vasudev. Thereafter, the SHO gave notice, Ex.P/3 to the appellant as required by Section 50 of the NDPS Act, thereby asking the accused whether he wants to have his search conducted either in the presence of a Magistrate or the Gazetted Officer. The appellant consented to have his search conducted by the SHO. The SHO then conducted search and recovered smack weighing 1 gm 40 mg. from the right pocket of his Payjama. The smack recovered was kept in a match box. He sealed the smack. He prepared the seizure memo and arrested the appellant. 4. On completion of above formalities, a case was registered for offence under section 8/21 of the NDPS Act. In the course of investigation, the police recorded the statements of witnesses under section 161 Criminal Procedure Code and sent the smake to Forensic Science Laboratory for chemical examination. He prepared the seizure memo and arrested the appellant. 4. On completion of above formalities, a case was registered for offence under section 8/21 of the NDPS Act. In the course of investigation, the police recorded the statements of witnesses under section 161 Criminal Procedure Code and sent the smake to Forensic Science Laboratory for chemical examination. The FSL Report Ex.P/13 indicates that sample contained in the packet marked 'A' gave positive tests for the presence of diacetyl morphine (heroin). Having completed investigation, the police submitted a charge-sheet against the appellant. 5. The learned trial Court on the basis of evidence and material collected during investigation and placed before it, framed charges against the appellant for offence under section 8/21 of the NDPS Act. The appellant denied the charge and claimed trial. The prosecution, in order to prove its case, examined as many a s 9 witnesses and got exhibited some document. Thereafter, the appellant was examined under section 313 Criminal Procedure Code He did not examine any witness in defence. 6. At the conclusion of trial, the learned trial Court convicted and sentenced the appellant in the manner stated herein above. Hence this appeal against conviction.In assailing the conviction, Mr. Hora, learned Amicus Curiae has, inter alia contended that the prosecution has failed to prove compliance of the mandatory provisions of Section 50 of the NDPS Act. Referring the ocular and documentary evidence learned counsel contended that the appellant was not informed of his right to have his search conducted either in the presence of a Magistrate or a Gazetted Officer. The option given to the appellant was not inconsonance with the provisions of Section 50 of the NDPS Act. 7. I have given my anxious consideration to the above argument and scanned the evidence in this regard. It is settled law on the point that compliance of Section 50 of the Act is imperative and its non-compliance would render the recovery of contraband suspicious and would result in vitiating conviction and sentence of the accused. To consider the question, whether or not there was non-compliance of Section 50 of the NDPS Act, it would be profitable to refer the evidence. To consider the question, whether or not there was non-compliance of Section 50 of the NDPS Act, it would be profitable to refer the evidence. Ex.P/3 is the notice given to the appellant, which shows that he was given option to have his search conducted either in the presence of any Magistrate or Deputy Superintendent of Police or any Gazetted Officer or the SHO himself, who was also a competent officer for the purpose: The accused consented for his search to be conducted by the SHO himself and he gave consent marked E to F and put his signature from 'G to H'. There cannot be any dispute that the SHO being an empowered officer was fully competent to search the appellant. It is true that PW-4 Vashudev, one of the witness to the search has not supported the prosecution case and has been declared hostile. PW-2 Hajari Lal another witness, who happens to a police employee has fully supported the search. He admitted that before proceeding to search, a notice under section 50 (Ex.P/3) was given to the appellant and the smack was recovered in his presence. The witness has admitted his signature on notice Ex.P/3 at place 'A to B'. PW-8 Radhey Shyam Sharma, SHO who conducted search has fully supported the case. It is evident that the consent of the accused on Ex.P/3 is in his own hand writing and below the consent he put his signature from 'G to H'. He has not denied his signature in his statement under section 313 Criminal Procedure Code It may also be noted that the SHO before proceeding to search, gave requisition Ex.P/11 to constable Niranjan Lal to procure two independent witnesses. The report of Niranjan Lal shows that he' tried his level best to procure two independent witnesses but could manage only one, namely Vashudevo and that the SHO had no option except to ask one constable Hajari Lal to witness the search and that witness, as stated above fully supported the prosecution case. Merely because PW-2 Hajari Lal happens to be a police official, his statement cannot be disbelieved or under estimated. I see no reason to disbelieve the statement of Hajari Lal on the point of compliance of Section 50 of the NDPS Act even in the absence of independent corroboration. Merely because PW-2 Hajari Lal happens to be a police official, his statement cannot be disbelieved or under estimated. I see no reason to disbelieve the statement of Hajari Lal on the point of compliance of Section 50 of the NDPS Act even in the absence of independent corroboration. There is no rule of law nor indeed any rule of prudence which requires that the evidence of a police officer/official should be treated on the same footing as the evidence of accomplices and there should be insistence on corroboration. In the facts and circumstances of a particular case the Court may be disinclined to act upon the evidence of such an officer/official without corroboration, but equally, in the facts and circumstances of another case the Court may unhesitatingly accept the evidence of such an officer/official. It is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can there be any precedential guidance. In this view of the matter the evidence of PW-8 Radhey Shyam Sharma, SHO who conducted search and seizure of contraband is trustworthy and finds corroboration by the statements of PW-1 Banwari Lal, PW-2 Hajari Lal and PW-6 Niranjan Lal in material particulars and, therefore, there is no need to seek any corroboration by independent witnesses. The argument of the learned that mandatory provision of Section 50 of the NDPS Act was breached has no merit. 8. The next limb of argument of the learned counsel is that here has been non-compliance of Section 42 of the NDPS Act. According to him, the written report Ex.P/1 submitted by PW-1 Banwari Lal, ASI (sic SI) to the SHO was the, information to the empowered officer, but the empowered officer failed to reduce this information in writing and also failed to send a copy thereof to his immediate superior officer. In this back ground learned counsel argued that there was complete non-compliance of the provisions of Section 42 of the NDPS Act. 9. As regards above argument, suffice it to say that the empowered officer had no occasion nor had he any information so as to enable him to make compliance of Section 42 of the NDPS Act. As per the prosecution case, PW-1 Banwari Lal, SI while on patrolling duty received information through some informer that appellant was involved in selling smack. As regards above argument, suffice it to say that the empowered officer had no occasion nor had he any information so as to enable him to make compliance of Section 42 of the NDPS Act. As per the prosecution case, PW-1 Banwari Lal, SI while on patrolling duty received information through some informer that appellant was involved in selling smack. On this information, he apprehended the appellant and then produced him before the SHO alongwith his report. Banwari Lal was not the officer empowered and the empowered officer (PW-8 Radhey Shyam) had no prior information. The compliance of Section 42 of the NDPS Act has been held to be mandatory by the Apex Court in series of cases. Section 42 of the NDPS Act comes into play only when the officer empowered has received information from any person that 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, and then it is imperative that the officer should take it down in writing and forthwith send a copy thereof to his immediate official superior. In the case at hand, the empowered officer had no prior information from any person. The accused was already before him on being produced by Banwari Lal SI, who had apprehended him on the information of informer as regards accused having been in possession of smack. As stated above, Banwari Lal was not the empowered officer and the SHO who was the empowered officer had no prior information as to the suspect being in possession of contraband. In these circumstances no question of there being non-compliance of Section 42 of the Act does arise in the present case. 10. It was next contended by the learned Amicus Curiae that the smack recovered and sent to the Forensic Science Laboratory was not the same which was seized and sealed as there was difference in weight of smack which reached the Forensic Science Laboratory. Referring to the FSL report, learned counsel argued that the weight of recovered smack was 1 gm 50 mlgm along with wrapper, whereas the weight as mentioned in FSL report is 1.405 gram along with wrapper. Referring to the FSL report, learned counsel argued that the weight of recovered smack was 1 gm 50 mlgm along with wrapper, whereas the weight as mentioned in FSL report is 1.405 gram along with wrapper. In these circumstances, learned counsel submitted that possibility of tampering with seal on the recovered smack cannot be ruled out and it cannot conclusively be said that the smack sent for chemical examination was the same which was recovered and sealed on the spot. 11. The above argument, in my considered view is devoid of merit. A glance at the seizure memo and the FSL report Ex.P/13 makes it clear that difference in weight of smack along with wrapper at the time of seizure and at the time when it was sent to FSL is only of few miligrams. The seizure Memo indicates that weight of recovered smack along with 'Bardana' was 1.50 gms, while the FSL report indicates that the "substance weighed 1.405 gms along with a piece of paper wrapper. This difference of few miligrams in the weight of smack cannot be attached much importance and it is of little value. From the evidence on record it is evident that the empowered officer has followed the procedure in terms of the provisions contained in the NDPS Act and as such it can safely be held that the smack seized and sealed at the spot remained intact throughout till it was handed over to the FSL and there was no tempering with. 12. Referring the statements of PW-1 Banwari Lal, PW-2 Hazari Lal and PW-6 Niranjan Lal and pointing out difference in timings and distance between the places, learned counsel contended that there are major contradictions in their statements on such vital aspects of the case, which create serious doubt on the genesis of the prosecution story. 13. I have pondered over the above argument. It is difficult to expect to remember the events with mathematical precision. It is common knowledge that ordinary human memories are apt to blur with passage of time. In such a situation there. are bound to occur certain discrepancies which are in the form of omissions and contradiction and they cannot be considered as fatal to the evidentiary value, otherwise trustworthy. 14. Lastly, it has been contended by Mr. Hora, learned Amicus Curiae that the smack alleged to have been recovered was weighing only 1.40 gms. In such a situation there. are bound to occur certain discrepancies which are in the form of omissions and contradiction and they cannot be considered as fatal to the evidentiary value, otherwise trustworthy. 14. Lastly, it has been contended by Mr. Hora, learned Amicus Curiae that the smack alleged to have been recovered was weighing only 1.40 gms. The prosecution has not been able to lead evidence to the effect that the recovered smack was kept for sale and therefore, it should be presumed that it was for the personal consumption of the accused. On this strength, learned counsel argued that no offence under section 8/21 of the NDPS Act is made out against the appellant. In support of his argument, learned counsel has relied upon Raju v. State of Kerala, 1999 Cr.L.J. 3486 (SC) : 1999 Cr. L.R. (SC) 322 , wherein their Lordships of the Apex Court have observed as under : "The prosecution had led no evidence to show that he was an addict or that he was regularly taking brown sugar. Therefore, it was not proper to reject the defence of the appellant on the ground that during the trial the appellant was in custody and could not have consumed brown sugar and yet he did not exhibit withdrawal symptoms. It is also not in dispute that the quantity which he was carrying was 'small quantity'. The value of it was only Rs. 25/-. It is, therefore, doubtful if such a small quantity was purchased by him for sale and make any profit out of it. In any case, there is no evidence on the basis of which such an inference can be drawn. These aspects have not been considered by the trial Court and the High Court. We are of the opinion that this appeal deserves to be allowed and the conviction of the appellant deserves to be altered from Section 21 to Section 27 of the NDPS Act. 15. I have given my anxious consideration to the above argument. A perusal of Section 27 of the NDPS Act makes it is clear that if the seized psychotropic substance is smack in small quantity and the same is proved to have been kept by the accused for his personal consumption then the sentence would be only for one year. 15. I have given my anxious consideration to the above argument. A perusal of Section 27 of the NDPS Act makes it is clear that if the seized psychotropic substance is smack in small quantity and the same is proved to have been kept by the accused for his personal consumption then the sentence would be only for one year. The condition precedent for applying this provision is that the seized goods should be proved by the accused that he kept the same for his personal consumption and not for sale. In the case at hand the accused has not taken the plea that he had kept the smack for his personal use. I am fortified in my view by a decision of the Apex Court in Karim Hussain Sohra Sindhi v. State of Gujarat, (2003) 10 SCC 49 , wherein their Lordships considering the provisions of Section 27 of the NDPS Act have held that "the condition precedent for applying this provision of law is that the seized goods should be proved by the appellant that he had kept the same for his personal consumption and not for sale". While rejecting the argument of counsel for the accused, their Lordships held : "... We find that though the quantity seized is a small quantity of 2.200 gm and the same was packed and kept in fifty nine separate packets, which itself indicates that the said quantity of psychotropic substance was not kept by the appellant for his personal consumption but was obviously kept for sale." The law relied upon by the counsel for the appellant is not applicable to the facts of the present case. In Raju's case the accused had taken the plea in his defence that the recovered contraband weighing only 100 mgs. was kept for his personal consumption. However, the trial Court rejected the said plea on the ground that no evidence was led by the appellant to prove his defence and that if the appellant was an addict to brown sugar, one would have found withdrawal symptoms in him but no such tendencies were exhibited by the appellant at any stage of trial. The High Court affirmed the finding of the trial Court. The Apex Court held that "the quantity which the accused was carrying was 'small quantity'. The value of it was only Rs. 25/-. The High Court affirmed the finding of the trial Court. The Apex Court held that "the quantity which the accused was carrying was 'small quantity'. The value of it was only Rs. 25/-. It is therefore, doubtful if such a small quantity was purchased by him for sale and make any profit out of it. In any case, there is no evidence on the basis of which such an inference can be drawn." In the instant case, no such plea was raised by the accused in his defence n.)r the quantity of contraband recovered from the appellant was so small as that was involved in Raju's case. 16. In the result, the appellant (sic appeal) of appellant-Guru Dev Singh is dismissed. His conviction under section 8/21 of the NDPS Act and the sentence awarded thereunder are maintained.Appeal dismissed. *******