Judgment BRAHME P.S., J.: - Both the appellants stood trial for the offence under section 18 of the Narcotic Drugs and Psychotrophic Substances Act (hereinafter referred to as "the N.D.P.S. Act"), or in the alternative, for the offence under section 29 of the said Act for having found in possession of open weighing 5 kg. and 2 kg. respectively without any license, permit or authorization in the field commonly known as "Gadhemari" at village Ridhora Shiwar within the jurisdiction of Police Station, Belapur in Sessions Trial No. 28 of 2001 before the IIIrd Additional Sessions Judge, Akola, who by his judgment dt. 29-1-2001, convicted appellant Mahadeo s/o. Motiram Gavai (original accused No. 1) under section 18 r/w section 8(c) of the N.D.P.S. Act and sentenced to undergo rigorous imprisonment for fifteen years and to pay a fine of Rs. 2,00,000/- in default to undergo rigorous imprisonment for two years, while appellant Sk. Noor Sk. Jama @ Noor s/o. Ajmeri @ Noormohammad Jama Ajmeri (original accused No. 2) was also convicted under section 18 r/w section 8(c) of the N.D.P.S. Act and was sentenced to undergo rigorous imprisonment for the period of 15 years and to pay a fine of Rs. 2,00,000/- in default to undergo further rigorous imprisonment for two years. Both the appellants have challenged their conviction and sentence in these two appeals. Since in both the appeals the same judgment of conviction and sentence is under challenge, both these appeals are disposed of by this common judgment. 2. The prosecution case, as revealed from the evidence on record, is that on 26-11-2000, at about 8.00 a.m. Police Constable Subhash Awachar (P.W. 4) and Rajendra Wankhede (P.W. 5) attached to the Police Station, Belapur, while they were at Belapur bus stand, received an information that some persons from Madhya Pradesh are indulged in selling opium at the field of accused Mahadeo Gavai, by providing said narcotic drug to the truck drivers who come to Calcutta Dhaba situated on the National Highway No. 6 at Rilhora Shivar. These Police Constables, upon getting this information, went to the Police Station, Belapur and informed the said information to the Police Inspector Ramdas Patil (P.W. 7), who was then Police Station Officer at Police Station, Belapur. P.I. Patil asked them to give the information received by them in writing and accordingly, Police Constable Subhash gave information received by them in writing vide Exh. P.I. Patil asked them to give the information received by them in writing and accordingly, Police Constable Subhash gave information received by them in writing vide Exh. 31. 3. P.I. Patil then asked both the Police Constables to test veracity of the information so received after bandobast of bandh called on 27-11-2000. On 28-11-2000, P.I. Patil issued duty pass directing both these Constables to verify truthfulness of the said information secretly by disguising themselves as Shepherds. Accordingly, Police Constables Subhash and Rajesh went to Janta Petrol Pump situated on National Highway No. 6. They disguised themselves as Shepherds and on the pretext that their cow has been strayed, they went in the field of accused Mahadeo and when they entered the field, they found two persons present there and one of them asked them "Maal Hona kya?". Taking him from this query, both constables returned to the Police Station and submitted a detailed report to P.I. Patil on 28-11-2000 itself to the effect that the information received by them on 26-11-2000 was truthful and that they saw two persons in the field of accused Mahadeo having contraband opium with them. P.I. Patil them prepared his report in writing comprising therein written information received by him through Police Constable Subhash. He also took entry in the station diary at Sana Entry No. 27 vide Exhs. 15 and 17 about this information which was reduced into writing vide Exh. 46 and this report (Exh. 16) was immediately sent by him to the S.D.P.O., Akola through Police Constable Rajendra (P.W. 5), who, in turn, after getting duty pass, went to Akola and delivered the report and brought the acknowledgement on the duty pass (Exh. 35) and returned to Janta Petrol Pump as directed by P.I. Patil. P.I. Patil then called one Police Constable Chandrakant directing him to arrange for two witnesses to act as panchas for the raid and search and seizure. Accordingly, entry in the station diary was taken at Sana Entry No. 28. After arrangement of panch witnesses, P.I. Patil apprised them and police staff about the informations so received and proposed raid for search and seizure of opium and in that regard, an entry in the station diary was made at Sana Entry No. 29 at 15.30 hours. 4. Accordingly, entry in the station diary was taken at Sana Entry No. 28. After arrangement of panch witnesses, P.I. Patil apprised them and police staff about the informations so received and proposed raid for search and seizure of opium and in that regard, an entry in the station diary was made at Sana Entry No. 29 at 15.30 hours. 4. Thereafter, police party led by P.I. Patil reached to the Janta Petrol Pump where Police Constable Rajendra joined the raiding party that proceeded to the field of accused Mahadeo. When they reached near the field, Police Constable Subhash showed the field as well as the hut in question to the raiding party. When they reached to the field, P.I. Patil asked the driver of the jeep Police Constable Motiram to bring some shop keepers and weight and measures and balance by issuing duty pass to him at 17.15 hours. Accordingly, Police Constable Motiram, after going to the nearby village, brought Anil Damodar, a shopkeeper (D.W. 1) who brought with him the balance and weight and measures P.I. Patil, while he was on the boundary of the adjacent field, called accused Mahadeo, who responded to his call and asked him whether the field and hut belongs to him. When accused Mahadeo answered the query in the affirmative, P.I. Patil, by disclosing his identify, entered the field and disclosed him the information received and also their purpose of visiting the field or the hut. Accused Mahadeo was given notice/intimation under section 50 of the N.D.P.S. Act in writing the vide Exh. 53 making him aware of his right to get his search conducted in presence of Magistrate or Gazetted Officer. However, accused Mahadeo declined to do so and gave it in writing accordingly. The raiding party them, after having entered the field, noticed small heap of rotten onion in front of the hut. The raiding party along with panch witnesses entered the hut and to their surprise, found accused No. 2 Sk. Noor sitting there and one suitcase was lying near him. P.I. Patil gave his introduction to him and explained the purpose of raid. He was also informed of his right to be searched in the presence of Magistrate or Gazetted Officer. But, he declined to exercise that right. The raiding party also asked both the accused to have search of the raiding party, but they declined. P.I. Patil gave his introduction to him and explained the purpose of raid. He was also informed of his right to be searched in the presence of Magistrate or Gazetted Officer. But, he declined to exercise that right. The raiding party also asked both the accused to have search of the raiding party, but they declined. Then the suitcase, that was found in the hut, was searched and a hump of black substance was found in the polythene bag kept in the suitcase. On taking smell of it, it was found to be opium. When it was weighed on balance, it was found weighing 2 kg. In the personal search of accused Sk. Noor, an amount of Rs. 4,760/- was found. After the raiding party came out of the field and took search, they found one plastic bag containing black substance hidden beneath the heap of rotten onion that was lying outside the hut. That black substance when weighed was found weighing 5 kgs. and when smell was taken, it was found to be opium. From both the polythene bags that contained black substances i.e. opium, a sample weighing 100 grams each was collected and then sealed separately for the purpose of analysis. The balance material weighing 1.900 grams and 4.900 grams, was also seized and sealed separately in presence of panch witnesses. P.I. Patil prepared panchanama of seizure and search vide Exh. 19. The raiding party along with both the accused and property seized returned to Police Station, Belapur where the offence was registered vide Crime No. 113 of 2000, under section 22 of the N.D.P.S. Act against both the accused on the basis of First Information Report (Exh. 51). P.I. Patil then immediately sent compliance report vide Exh. 52 to his superior about the raid, seizure and also about registration of crime. 5. The seized muddemal property was then deposited with Police H.C. Vasudeo s/o. Shankar Tayade (P.W. 6), who was on that on duty as Malkhana Mohrir. He, accordingly, took entry in main property register regarding P.I. Patil having deposited in his custody the muddemal property in Police Station, Belapur, Crime No. 113 of 2000 and the property deposited comprising of four sealed packets, two of which contained 100 grams of opium each, while the third packet was weighing 1.900 kg. and the 4th packet containing 1.900 kg. and also cash amount of Rs. 4,760/- and suitcase. and the 4th packet containing 1.900 kg. and also cash amount of Rs. 4,760/- and suitcase. Police Head Constable Tayade after verifying the seized muddemal articles, took detailed note thereof in the muddemal property register. He verified that the property deposited was in sealed condition, as per extract of the property register vide Exh. 12. P.I. Patil took up investigation in the matter. On the next day, copy of the F.I.R. was sent to the Judicial Magistrate, First Class, Belapur as well as the Special Court under the N.D.P.S. Act at Akola. On 30-11-2000, the muddemal property namely sealed samples, which were to be sent to the Chemical Analyser for analysis, were handed over to Police Constable Damodhar (P.W. 3) and necessary entry was taken in the station diary. P.I. Patil sent a detailed report to his Superior Officer about search, seizure and arrest made on 30-11-2000. Police Constable Damodhar handed over tow sealed packets, so also forwarding letter which contained the specimen seal to the office of Chemical Analyser on 4-12-2000, for which he was given written acknowledgement vide Exh. 29, which he produced to the Police Station Officer on his return on 6-12-2000. After receiving the report of the Chemical Analyser (Exh. 61) showing that the seized black sticky substances was opium falling under section 2(xv)(a) of the N.D.P.S. Act, charge-sheet was filed against the accused persons before the Sessions Court, Akola. 6. The learned Sessions Judge, Akola, while framing the charge, explained to the appellants the allegations against them mainly about they having been found in possession of opium, a narcotic substance as defined under the N.D.P.S. Act. Both the appellants pleaded not guilty to the charge and claimed to be tried. At the trial, the prosecution examined in all seven witnesses including Gajanan s/o. Ambuji Umale (P.W. 1) who was selected as a panch witness for search and seizure and in whose presence, after taking search of accused persons, contributed article namely opium was found and seized under seizure memo Exh. 19, Police Constable Damodhar s/o. Bhandar Kanhedker (P.W. 3) who carried the sealed samples to the office of Chemical Analyser and handed over the same to the office of C.A. as per invoice challenge Exh. 19, Police Constable Damodhar s/o. Bhandar Kanhedker (P.W. 3) who carried the sealed samples to the office of Chemical Analyser and handed over the same to the office of C.A. as per invoice challenge Exh. 29 acknowledging receipt of the same; Police Constable Subhash s/o. Onkar Awachar (P.W. 4) and Police Constable Rajendra s/o. Ramrao Wankhede (P.W. 5) who had received information on 26-11-2000 which was verified by them on 29-11-2000 as per the directions of P.I. Patil (P.W. 7) vide their report (Exh. 33); Police H.C. Wasudeo s/o. Shankar Tayade (P.W. 6) who was Malkhana Mohrir at Police Station, Belapur in whose custody P.I. Patil deposited the sealed property on 28-11-2000. 7. Exh. 47 is the station diary Entry No. 13 taken at 22.30 hours mentioning the details about search, seizure and consequent registration of crime against the accused persons. Exh. 58 is the list of seized property and Exh. 59 is the forwarding letter to C.A., Nagpur for analysis of the seized sealed samples containing specimen seal of the I.O. Exh. 60 is the station diary Sana entry taken on 30-11-2000 at 14.30 hours depicting the dispatch of the seized samples to the officer of C.A. through the carrier P.C. Damodhar, Exh. 62 is the report dt. 30-11-2000 by P.I. Patil to the S.D.P.O., Akola regarding search, seizure and arrest of the accused persons. 8. After the prosecution evidence was over, both the accused were examined under section 313 of the Code of Criminal Procedure. They have categorically denied the evidence and circumstances appearing against them. They have denied that the opium was found and seized from their possession. Their defence, as is spell out from the lenor of cross-examination of prosecution witnesses, is that the contraband opium was seized from Calcutta dhaba or the same was found unclaimed on the back side of the said dhaba situated on the National Highway No. 6 and the accused persons are falsely implicated in the crime. However, both the accused persons admitted that the field bearing Gate No. 64 of 5 situated between the limits of village Ridhora as well as the hut therein was owned and possessed by accused No. 1 Mahadeo. Accused No. 1 Mahadeo examined witnesses Anil s/o. Sukhdeo Damodhar (D.W. 1) and Supdaji s/o. Motiram Wakode (D.W. 2) as witnesses in defence. 9. Accused No. 1 Mahadeo examined witnesses Anil s/o. Sukhdeo Damodhar (D.W. 1) and Supdaji s/o. Motiram Wakode (D.W. 2) as witnesses in defence. 9. It is pertinent to note here at this juncture that Anil Damodhar (P.W. 1) was in fact, according to the prosecution, the person who had accompanied the raiding party having been called to bring weights and measures and balance to weigh the contraband article that came to be seized on search. He, however, was not examined by the prosecution as witness. But, it was accused No. 1 who examined him as defence witness and in his evidence, he claimed that his weights and measures and balance was taken by the raiding party for the raid. However, he denied to have accompanied the raiding party. 10. Other defence witness Supdaji s/o. Motiram Wakode (D.W. 2) deposed that he was in the employment of accused No. 1 at the relevant time and that he was occupying the hut that was in the field and he was living there with his family. The evidence of this defence witness was led on behalf of the accused to negative the prosecution claim that accused No. 1 was in possession of the hut that was in the field. The trial Court, accepting the evidence of P.I. Patil, panch witness Gajanan Umale, two Police Constables Rajendra and Subhash, Police H.C. Wasudeo Tayade, Police Constable Damodhar Kanhedkar and the contemporious documentary evidence, came to the conclusion that the prosecution has established beyond reasonable doubt that the contraband article i.e. opium was found in possession of appellants and that the land with the hut therein, was in exclusive possession of appellant Mahadeo, who was admittedly owner of the land and that the searching Officer has complied with the mandatory provisions under the N.D.P.S. Act in respect of the search and seizure of contraband article and that the offence with which the appellants were charged with, has been brought home and proved. Consequently, both the appellants were convicted and sentenced as stated in the earlier part of the judgment. Hence, two separate appeals by the appellants. 11. I have heard Mr. Tiwari Advocate for the appellant Mahadeo s/o. Motiram Gawai in Criminal Appeal No. 134 of 2002 and Mr. Shyam Dewant, Advocate for the appellant Sk. Noor Sk. Jama @ Noor s/o. Ajmeri @ Noormohammad Jama Ajmeri in Criminal Appeal No. 203 of 2002 and Mr. Hence, two separate appeals by the appellants. 11. I have heard Mr. Tiwari Advocate for the appellant Mahadeo s/o. Motiram Gawai in Criminal Appeal No. 134 of 2002 and Mr. Shyam Dewant, Advocate for the appellant Sk. Noor Sk. Jama @ Noor s/o. Ajmeri @ Noormohammad Jama Ajmeri in Criminal Appeal No. 203 of 2002 and Mr. Mandape, learned A.P.P. for the respondent state. I have gone through the judgment of the trial Court, the evidence recorded at the trial, documents to which reference has been made in the judgment, with the assistance of the learned Counsel for the parties. 12. Before considering the submissions of the learned Counsel for the parties, it is necessary to take note of few facts about which there is no dispute. It is not disputed that the searching Officer P.I. Patil (P.W. 7) conducted the raid on 28-11-2000 in which the contraband article namely opium was found when search was taken and that the said property which was duly sealed was handed over to Police H.C. Wasudeo Tayade, Malkhana Mohrir on the same day after the offence was registered and then, on 30-11-2000 the said sealed samples were handed over to Police Constable Damodhar (P.W. 3) for being carried to the Chemical Analyser and who, in turn deposited the same on 4-12-2000 with the specimen seal as noted in the forwarding letter and the receipt of the property has been acknowledged in writing vide Exh. 29. The C.A. vide his report Exh. 61 has opined that the samples Nos. 1 and 2 are of Ophan containing 3.36%, 3.44% respectively of Morphine. The opium falls under section 2(xv)(a) of the N.D.P.S. Act. In the report (Exh. 61), it is stated that the forwarding letter No. 1325/2000, dt. 30-11-2000 forwarding two sealed parcels, seals intact as per copy sent, labelled C.R. No. 113/2000, under sections 20, 25 of the N.D.P.S. Act was received on 4-12-2000. This statement in the report of C.A. Exh. 61 lends assurance to the evidence of P.I. Patil, Police H.C. Vasudeo Tayade and Police Constable Damodhar that the property namely opium seized on 28-11-2000 in raid that was conducted by P.I. Patil in crime No. 113/2000 was received with seal intact as per the forwarding letter. The defence has not disputed the opinion given by the C.A. in the report Exh. 61. The defence has not disputed the opinion given by the C.A. in the report Exh. 61. That apart, in view of the data given by the C.A. in the report Exh. 61 giving details of the test conducted by him, which was the basis for his conclusions, the trial Court has not committed any error in accepting the report (Exh. 61). So, it is conclusively established by the prosecution that the contraband article that was seized in the raid, that was carried out on 28-11-2000 by P.I. Patil, was narcotic substance namely opium which contained 3.36% and 3.44% respectively in the samples analysed as Morphine. It is further borne out on the evidence on record and also not disputed by the accused Mahadeo that the field and the hut, of which search was taken, belonged to him and also that it was in his possession. It is also borne out on the evidence on record that, at the time when raid was taken out appellant Mahadeo as well as Sk. Noor were present and they were accosted on the spot. As per the prosecution case, two persons who were selected to act as panchas for seizure were Gajanan Umale (P.W. 1) and one Shyam. It is admitted that witness Gajanan was working as Police H.C. and he was posted at Belapur only for three years since 1970 and he worked under the Police Inspector Patil (P.W. 7) when he was at Murtizapur and he worked under him for 3½ years. It is further admitted that the other panch Shyam (not examined at the trial) was working as a Sweeper in the Police Station and he used to be in the Police Station in the morning and in the evening. In view of this admitted position in respect of close association of the panchas who were selected for raid, defence has heavily criticized the prosecution case contending that these two persons who were selected as panchas were stock witness under the thumb of raid officer P.I. Patil and trail, in the background that in spite of independent persons so many in members being available on that day that selections of the two persons who acted as panchas makes the claim of prosecution about seizure of contraband from the possession of the appellants doubtful. 13. Mr. Shyam Dewani, learned Advocate appearing for the appellant Sk. Noor Sk. 13. Mr. Shyam Dewani, learned Advocate appearing for the appellant Sk. Noor Sk. Jama @ Noor Ajmeri @ Noormohammad Jama Ajmeri submitted that in spite of having received information on 26-11-2000, P.I. Patil conducted raid on 28-11-2000, which makes the prosecution case and its claim of seizure doubtful. It is suspicious because P.I. Patil did not select independent persons, though available, to act as panchas for the raid. He further pointed out from the seizure memo, F.I.R., written report, written message Exh. 52, station diary entry Exh. 57, final compliance report Exh. 62 and also from the evidence of P.I. Patil and Police Constables Subhash and Rajendra and panch witness Gajanan that personal search of accused Sk. Noor was taken. As per the prosecution case, accused Sk. Noor was found present in the hut when the raiding party entered the hut. He was having a suitcase by his side. It is the case of prosecution that in his personal search cash amount of Rs. 4,760/- was found, while in the search of the suitcase opium weighing 5 kg. was found. In this factual background, the learned Counsel submitted that there is no evidence on record to show that before taking personal search of accused Sk. Noor, notice under section 50 of the N.D.P.S. Act informing him of his right to get searched in presence of the Gazetted Officer or Magistrate was served on him and therefore, there is no compliance of mandatory provision under section 50 of the N.D.P.S. Act, which vitiates the trial as well as seizure from accused No. 2 Sk. Noor. The learned Counsel also pointed out that accused No. 2 Sk. Noor was not in exclusive possession of the hut from where the contraband article has been seized. In that context, reliance has been placed on the evidence of defence witness Supdaji (D.W. 2) who claimed to be in the employment of the accused Mahadeo and was occupying the land with his family. Therefore, it is submitted with vehemence that the opium found in the suitcase that was in the hut cannot be said to be in exclusive possession of the appellant Sk. Noor and therefore, the trial Court has committed an error in holding him guilty for keeping in his possession opium. The learned Counsel submitted that there is no sufficient corroboration to the evidence of police witnesses. Noor and therefore, the trial Court has committed an error in holding him guilty for keeping in his possession opium. The learned Counsel submitted that there is no sufficient corroboration to the evidence of police witnesses. The trial Court has committed an error in rejecting the evidence of defence witness Anil Damodhar, who was in fact initially cited as a witness by the prosecution, but was not examined for the reasons best known to it. 14. Mr. Tiwari, learned Counsel for the appellant Mahadeo further submitted that there was no substantial compliance of mandatory provision section 42(1 2) of the N.D.P.S. Act. As per the record, Exh. 31 is the information that was reduced into writing. The learned Counsel submitted that P.I. Patil (P.W. 7) ought to have submitted this information reduce into writing to his Superior Officer as required by section 42(2) of the N.D.P.S. Act. The Police Constables who sent Exh. 31, were directed by the P.I. Patil to verify the information and accordingly, on 28-11-2000 they, having visited the field, verified and found that the information which they had received was true. However, there is no entry in the station diary to that effect, though on 28-11-2000 the report (Exh. 31) was submitted by them to P.I. Patil who, in turn, sent report (Exh. 46) to his superior Officer on the same day. It is contended that this report (Exh. 46) cannot be an information in writing to the Official Superior as contemplated under section 42(2) of the N.D.P.S. Act. The learned Counsel pointed out that Exh. 46 does not disclose that the men from Madhya Pradesh were dealing with the contraband article in the field of appellant Mahadeo. It does not disclose the nature of information which P.I. Patil (P.W. 7) had received and that this report (Exh. 46) lacks of information as to the persons who were having possession of contraband article. P.I. Patil ought to have sent copy of the report (Exh. 31) immediately. It is further submitted that, as required under section 42(2) of the N.D.P.S. Act, it was mandatory for P.I. Patil to give intimation to his Official Superior immediately after receiving the report (Exh. 31). But, P.I. Patil having not done so, there was no compliance of the provisions under section 42(2) of the N.D.P.S. Act. 15. 31) immediately. It is further submitted that, as required under section 42(2) of the N.D.P.S. Act, it was mandatory for P.I. Patil to give intimation to his Official Superior immediately after receiving the report (Exh. 31). But, P.I. Patil having not done so, there was no compliance of the provisions under section 42(2) of the N.D.P.S. Act. 15. The learned Counsel further submitted that there was no compliance of section 57 of N.D.P.S. Act inasmuch as the full report was not sent within 48 hours. It is pointed out that P.I. Patil had sent wireless message vide written report (Exh. 52). It is not full report as contemplated under section 57 of the Act. This report is silent as to the quantity of the contraband possessed by each of the accused, as also, as to whether actually opium was found and there is no evidence to show that in fact wireless message was sent and therefore, that creates infirmity in the prosecution case. 16. The learned Counsel further contended that on the evidence on record it is not proved that what was seized was sent to the C.A. for analysis and having regard to the admitted fact that P.I. Patil retained with it the specimen seal even after the property was seized, sealed and was handed over to Malkhana and hence, there is every possibility of tampering of the seal. It is pointed out by the learned Counsel for the appellant Mahadeo that there is no evidence to show that specimen seal that was affixed was also sent along with the C.A. samples. It is pointed out on the evidence on record that, at the time when the property was seized, the samples which were to be sent to the C.A. were wrapped in brown paper. But, there is no evidence to show that specimen seal of the P.I. Patil was affixed on the C.A. sample at that time. There is no evidence to show that when the C.A. samples were handed over to the carrier Damodhar (P.W. 3), no entry as to the date when Madkana Mohrir received the property was made, it is pointed out that C.A. samples were dispatched to C.A. through the carrier (P.W. 3) on 30-11-2000. However, in the Malkhana register, as on 1-12-2000, the muddemal property entered at serial number 164 was shown pending. Exh. 59 is the letter dt. However, in the Malkhana register, as on 1-12-2000, the muddemal property entered at serial number 164 was shown pending. Exh. 59 is the letter dt. 30-11-2000 addressed to the C.A. pertaining to forwarding of the sample for analysis. It is pointed out that when Exh. 59 was prepared on 30-11-2000, the C.A. form was not prepared. P.I. Patil has admitted that specimen seal was kept with him even after the seized property was handed over to Malkhana Mohrir. He has not deposited specimen seal either with the Police Station Officer or with the Malkhana Mohrir. Therefore, very sanctity of seal has lost, which gave rise to possibility of tampering of the seal. That is much more so when there is no evidence as to when the specimen seal was affixed. 17. The learned Counsel for the appellants contended that the property was handed over to the carrier on 30-11-2000 and he, in fact left Police Station, Balapur and reached Nagpur on 1-12-2000. He handed over the property in other crimes to the Officer of C.A. on 2-12-2000 at to 10.30 a.m., but he did not hand over the property in the present crime on that day. Admittedly, he handed over the property on 4-12-2000. Prosecution has failed to examine as to why the property was not handed over immediately by the carrier. In absence of any explanation, serious doubt is created about authenticity of the seized articles. 18. Mr. Tiwari, Advocate submitted that prosecution has utterly failed to prove that the contraband article alleged to have been seized from appellant Mahadeo was in his exclusive and conscious possession. Admittedly, the contraband article was found in the field hidden in the heap of onions. Admittedly the field, though it belonged to accused No. 1, was easily accessible, as it is abutting the road and it has no fencing; even the hut that was in the field had no door. However, the entries was closed by bamboo mats. It is admitted by the prosecution witness Gajanan that appellant Mahadeo was not personally cultivating the land. He had employed witness Supdaji (D.W. 2) who was occupying the hut. The dhaba at the petrol pump is about 500 ft. away from the field. It is borne out on the evidence on record that there was standing crop in the field. It is admitted by the prosecution witness Gajanan that appellant Mahadeo was not personally cultivating the land. He had employed witness Supdaji (D.W. 2) who was occupying the hut. The dhaba at the petrol pump is about 500 ft. away from the field. It is borne out on the evidence on record that there was standing crop in the field. The prosecution witnesses Subhash and Rajendra have not identified appellant Mahadeo inasmuch as in their evidence they have stated that they could not identify accused No. 1 as the person who was sitting on the parapet wall of the well. In the background of this, when the opium was found in the field and that too, hidden under the heap of rotten onion, it cannot be said that it was in exclusive possession of appellant Mahadeo. As such, the learned Counsel contended that, the trial Court has erred in holding that the contraband article i.e. opium that was found in the heap of rotten onion in the filed, was in exclusive possession of appellant Mahadeo. 19. Mr. Tiwari, Advocate pointing out the discrepancies on material points in the evidence, submitted that the search and seizure is rendered doubtful. The fact that the search in the field at two places was taken directly and no search to any other place in the field or hut was taken, makes the matter doubtful. The learned Counsel pointed out from the report (Exh. 50), which Police Constable Motiram submitted regarding compliance of direction to bring the witness i.e. Anil Damodhar (D.W. 1) with his weights and measures and balance, stated that in the field opium was found and in order to weigh the contraband article found in the field, witness was brought by him. This report (Exh. 50) was given on 28-11-2000 at 17.50 hours. The learned Advocate submitted that the very wordingly of the report showing that "opium was found in the field" shows that it was anticipated before the raid could be conducted that there was opium stored in the field. This goes to show that the alleged seizure of opium is false. 20. Both the learned Advocates appearing for the appellants have placed reliance on various judgments of the Apex Court and the High Courts to substantiate their contentions. Reference to these decisions would be made at the proper stage while considering the contentions. 21. I have heard Mr. This goes to show that the alleged seizure of opium is false. 20. Both the learned Advocates appearing for the appellants have placed reliance on various judgments of the Apex Court and the High Courts to substantiate their contentions. Reference to these decisions would be made at the proper stage while considering the contentions. 21. I have heard Mr. Y.B. Mandape, learned A.P.P. for the respondent State. He pointed out that wireless message (Exh. 52) was in fact sent on 28-11-2001. That apart, compliance report (Exh. 62) was sent on 30-11-2000. That was well within 18 hours and therefore, there is substantial compliance of section 57 of the N.D.P.S. Act. He also pointed out that compliance of provisions of section 57 are directory and not mandatory. He placed reliance on the evidence of witness Gajanan, wherein he stated that P.I. Patil orally informed appellant Sk. Noor making, him aware of his right to get himself searched in presence of Gazetted Officer or Magistrate. Thus, according to him, there is sufficient compliance of section 50 of the N.D.P.S. Act. He further submitted that as contraband article was seized but only cash amount was seized in the personal search of appellants Sk. Noor, no compliance of section 50 was required. As regards the seizure of cash amount from the person of appellant Sk. Noor, it is submitted that this search was under the provisions of the Code of Criminal Procedure and therefore, no compliance under section 50 of the N.D.P.S. Act was required. The version of witness Gajanan was corroborated by P.I. Patil that appellant Sk. Noor was orally informed of his right to have his personal search in the presence of Gazetted Officer or Magistrate. Therefore, if at all compliance was required, this evidence is sufficient to show that there was substantial compliance of provisions under section 50 of the N.D.P.S. Act so far as search and seizure from appellant Sk. Noor is concerned. It is contended that since admittedly appellant Sk. Noor was resident of Madhya Pradesh, this itself gives authenticity to the information received by two Police Constables and that makes involvement of the appellant Sk. Noor for possession of contraband article probable. It is submitted that P.I. Patil had directed both the Constables to verify the information and accordingly they, after having, verified the information, submitted the report on 28-11-2000 vide Exh. Noor for possession of contraband article probable. It is submitted that P.I. Patil had directed both the Constables to verify the information and accordingly they, after having, verified the information, submitted the report on 28-11-2000 vide Exh. 33 and then P.I. Patil sent information in writing vide Exh. 46 to his Superior Officer and in that also, the report (Exh. 33) was enclosed with the information (Exh. 46) and thus, there was compliance of section 42(2) of the N.D.P.S. Act. 22. Mr. Mandape, learned A.P.P. submitted that, admittedly, the property received by the Malkhana Mohrir was in sealed condition. Then the property that was handed over to the carrier (P.W. 3) was also, admittedly, in sealed condition. It is further not disputed and borne out on the evidence i.e. report of C.A. (Exh. 61) that the samples received in the present crime by C.A. in the office of C.A. were in sealed condition. Therefore, there was no room for tampering with the seal, though admittedly P.I. Patil did not hand over the specimen seal to Malkhana Mohrir on 28-11-2000 when the property was handed over in his custody. It is pointed out that the specimen seal was affixed on the samples which were to be sent to the C.A. for analysis at the time when the property was seized. There is reference to the specimen seal and in fact the specimen seal has been embossed on the forwarding letter (Exh. 59) which was admittedly sent on 30-11-2000. In the report of C.A. (Exh. 61), it has been acknowledged in respect of sealed samples that the seals were intact as per the copy of letter i.e. Exh. 59. 23. As regards the criticism against the panch witnesses selected by P.I. Patil for the raid, the learned A.P.P. submitted that mere fact that the witness had obliged the Investigating Officer in other instances, that by itself would not denude him of his independent character. He pointed out that witness Gajanan though was subjected to cross-examination, his evidence remained undisturbed. His evidence has been accepted by the trial Court as inspiring confidence. He pointed out that witness Gajanan though was subjected to cross-examination, his evidence remained undisturbed. His evidence has been accepted by the trial Court as inspiring confidence. That apart, evidence of P.I. Patil coupled with evidence of Police Constable Subhash and Rajendra, who had accompanied him for the raid, inspires confidence and therefore, selecting witness Gajanan and other panch Shyam (not examined)- who was admittedly associated with police and more particularly, with P.I. Patil does not bring any infirmity in the prosecution case. It is also submitted by the learned A.P.P. that merely because P.I. Patil carried out investigation in the matter, that does not vitiate the trial as no prejudice has been caused to the accused. It is submitted that the investigation in the offence under the N.D.P.S. Act by empowered Officer like P.I. Patil does not vitiate the trial. He, therefore, urged that the trial Court rightly found both the accused guilty for having possessed opium, a narcotic substance under the N.D.P.S. Act. Learned A.P.P., therefore, urged that the appeals merit no consideration at all and so, the same should be dismissed. 24. As per the prosecution case, when the raid was conducted by P.I. Patil on 28-11-2000, admittedly, acting on prior information, on entering the field owned and possessed by appellant Mahadeo, first opium was seized from appellant SK. Noor, who was found in the hut when search of the suitcase that was with him was taken and also cash amount of Rs. 4,760/- was recovered in his personal search. After having come out of the hut, in the presence of appellant Mahadeo, when search was taken in the field, opium was recovered from the heap of rotten onions and that came to be seized under the panchanama (Exh. 19). It is on the basis of this recovery and seizure of opium that the prosecution claim that the appellants were found in possession of opium - a narcotic substance. To substantiate this claim, prosecution mainly relied on the ocular evidence of P.I. Patil, Police Constable Subhash, Police Constable Rajendra and panch witness Gajanan and to their evidence, the prosecution sought corroboration from search and seizure panchanama (Exh. 19) and the First information Report (Exh. 15). To substantiate this claim, prosecution mainly relied on the ocular evidence of P.I. Patil, Police Constable Subhash, Police Constable Rajendra and panch witness Gajanan and to their evidence, the prosecution sought corroboration from search and seizure panchanama (Exh. 19) and the First information Report (Exh. 15). The police witnesses, so also, witness Gajanan in their evidence did state that appellant Mahadeo was informed of purpose of personal search and also of the hut apprising him of the information received regarding possession of opium and that appellant Mahadeo was asked by Police Inspector Patil as to whether he wanted his personal search be taken in presence of some Gazetted Officers or that he shall take their search if he so wants. Appellant Mahadeo, however, declined to take their search and therefore, the raiding party made entry in the hut where the appellant SK. Noor was found sitting with a suitcase lying by his side. It is the claim by these witnesses that Inspector Patil asked appellant S.K. Noor whether he has any objection if his personal search is taken or where he wanted his personal search to be taken in presence of a Gazetted Officer and that too, appellant S.K. Noor told that he did not want that his personal search be taken in presence of Gazetted Officer and gave consent to the Police Officer to take his search. It has come in the evidence that appellant S.K. Noor, when asked about the suitcase as to whom it belonged to, he told that the suitcase belonged to him and when the suitcase was opened, bulk of some material blackish in colour was found and as such it was recovered from the possession of appellant S.K. Noor and further on analysis being carried out by the C.A., as per the report of C.A. (Exh. 61), the substance found and seized from the suitcase was opium. 25. In the seizure memo (Exh. 19), as to the notice under section 50 of the N.D.P.S. Act to the appellants it is mentioned as under : "I gave him in writing a letter of understanding under the provisions of the N.D.P.S. Act. After thinking over it for two minutes, he, in the presence of panchas, said "you take the search." Thereafter immediately I asked him to take personal search of mine, the police staff and the panchas. But he denied to do so." 26. After thinking over it for two minutes, he, in the presence of panchas, said "you take the search." Thereafter immediately I asked him to take personal search of mine, the police staff and the panchas. But he denied to do so." 26. It is further mentioned in the seizure memo (Exh. 10) that : "then myself and the panchas started taking legally the search of his hut. At that time, one person was found sitting with bluish blackish suitcase (inner side) from the side of the well (near) the hut. On asking about his name and address, he stated the same as Sk. Noor S.K. Jama, aged about 45 years, resident of Achera, Distt. Mansor (M.P.). On taking his personal search and search of the said suitcase, black coloured substance was found packed in polythene bag beneath the clothes kept in the said suitcase...... On taking personal search of said person, cash of Rs. 4,760/- was found with him. Similarly, one polythene bag containing black substance was found beneath the heap of rotten onions in the southern side position outside the said hut." 27. The evidence on record which includes the ocular testimony of police witnesses, P.I. Patil, Police Constable Subhash, Police Constable Rajendra and panch witness Gajanan coupled with intimation in writing vide Exh. 19 shows that appellant Mahadeo was informed of his right under sub-section (1) of section 50 of being taken to the nearest Magistrate or Gazetted Officer for making the search. However, so far as appellant Sk. Noor is concerned, no such option appears to have been given to him, which is clear from the evidence of witness Gajanan, who candidly stated that he did not tell police at the time of recording his statement that Inspector Patil asked the person sitting in the hut as to whether he desires that his search he taken in presence of Gazetted Officer. It is true that P.I. Patil in his evidence has stated that after having entered in the hut, he introduced himself to appellant Sk. Noor and told him that they had come there for the raid and search for narcotic drug and about their purpose of coming to the field and the hut. He then told Sk. It is true that P.I. Patil in his evidence has stated that after having entered in the hut, he introduced himself to appellant Sk. Noor and told him that they had come there for the raid and search for narcotic drug and about their purpose of coming to the field and the hut. He then told Sk. Noor that he has a right of being searched in presence of Magistrate or Gazetted Officer, but he declined to have his search in presence of any other officer and gave consent to them to take search. He also asked him to take their personal search, to which he declined. But this evidence of P.I. Patil regarding option extended to appellant Sk. Noor is not corroborated by the seizure memo (Exh. 19), as giving of such option to exercise right under section 50 of the N.D.P.S. Act to appellant Sk. Noor is not reflected in it. On the other hand, the recitals in the seizure memo (Exh. 19), as pointed out earlier though specifically speak of the option given to the appellant Mahadeo, it is clear from the recitals that the raiding party, after having entered in the hut and when introduction to appellant Sk. Noor was given and after having apprised him of the object of search of the hut, his personal search was taken, wherein cash amount was found and opium was found when the search of the suitcase, that was lying near the appellant, was taken. Similarly, the First information Report (Exh. 51) does not disclose giving of any such option, as required by section 50 of the Act about right to be searched in presence of Gazetted Officer or Magistrate, to appellant Sk. Noor. 27-A. On behalf of appellants, a common contention has been raised that recovery and seizure of opium from the possession of appellants is vitiated, so also, consequent conviction of the appellants since there is no compliance of mandatory provisions contained in section 50(1) of the N.D.P.S. Act. Section 50(1) of the N.D.P.S. Act reads thus :- "50. Noor. 27-A. On behalf of appellants, a common contention has been raised that recovery and seizure of opium from the possession of appellants is vitiated, so also, consequent conviction of the appellants since there is no compliance of mandatory provisions contained in section 50(1) of the N.D.P.S. Act. Section 50(1) of the N.D.P.S. Act reads thus :- "50. Conditions under which search of persons shall be conducted: (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 44, section 42 or 43, be 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...." The Supreme Court in a catena of decisions, the leading being the judgment of the Constitution Bench reported in 2000(5) Bom.C.R. (S.C.)236(C.B.) : 1999(6) S.C.C. 172 , (The State of Punjab v. Baldev Singh, U.P)1, has held thus: "(1) That when the empowered officer or a duly authorized officer acting on prior information in 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 such a search made, by a 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." 28. A perusal of the judgment of Constitution Bench would show that where an Authorised Officer is about to search a person on prior information, then under section 50(1) of the N.D.P.S. Act he has to inform the concerned person of his right to be searched before the nearest Gazetted Officer or nearest Magistrate and failure to do so would render recovery of illicit article suspect and vitiate the conviction and sentence of the accused. The factual position that has emerged on the evidence on record in the case before hand is that so far as appellant Sk. Noor is concerned, he was not informed and made aware of his right to be searched contained in section 50(1) of the N.D.P.S. Act. But, as regards appellant Mahadeo, as the evidence shows, when the raiding party in fact entered the field and before the search was to be taken, he was apprised of his right to be searched before the Gazetted Officer or nearest Magistrate. But then, in fact nothing has been recovered and seized in the personal search of appellant Mahadeo. Seizure of opium recovered from the heap of onions in the field is however attributed to his and probable for the reason that admittedly, he was in possession of the field. It is significant to note that what has been seized from the suitcase, that was found in the hut lying by the side of appellant Sk. Noor, is not attributed to appellant Mahadeo. Recovery in that regard of opium, as per the prosecution case, was attributed to appellant Sk. Noor. Therefore, in such state of factual situation about the recovery of opium from the field, compliance of provision contained in section 50(1) of N.D.P.S. Act so far as it related to appellant Mahadeo is redundant. Had if been the case of prosecution of recovery of contraband article from the person in personal search of appellant Mahadeo, then in that case, there was some significance to the factum of compliance of provisions under section 50(1) of the N.D.P.S. Act. 29. As regards appellant Mahadeo, recovery of opium that was found under the heap of rotten Onion, it was attributed to him on the ground that he was the person in whose possession exclusively the field was. The field was, according to the prosecution, in his occupation. 29. As regards appellant Mahadeo, recovery of opium that was found under the heap of rotten Onion, it was attributed to him on the ground that he was the person in whose possession exclusively the field was. The field was, according to the prosecution, in his occupation. Accepting the evidence of recovery of opium from the field belonging to appellant Mahadeo and that too, in his presence, the trial Court found him accountable for possession of that opium. It is no doubt true that defence has not disputed that the field in which search was taken and where from opium was recovered from the heap of rotten onions, was owned and possessed by the appellant. But then, according to Mr. Tiwari, learned Counsel for appellant Mahadeo, the appellant cannot be said to be in conscious and exclusive possession of the said contraband article as the field was accessible to the public at large, the same being situated the road and not being fenced. It is also sought to be established through the evidence of defence witness Supdaji that he was in occupation of the hut and field as an employee of appellant Mahadeo and that there was standing crop in the land at the time when raid was carried out. The trial Court has rejected that evidence of defence witness Supdaji. The trial Court giving emphasis on the factum of information in which appellant Mahadeo's name was involved for dealing with the narcotic substance namely opium, found that the opium that was recovered was in conscious possession of the appellant. 30. It is no doubt true that on the evidence on record and more particularly, through the evidence of police witnesses P.I. Patil, P.C. Suresh and P.C. Rajendra, it is crystal clear that appellant Mahadeo was very much present at the time when the raid was conducted and opium from the field was recovered. In this context, the evidence of these police persons, through which I have gone with the assistance of the learned Counsel for the parties, is certainly inspiring confidence. It is also borne out on the evidence that Police Constables Subhash and Rajendra, when sent for verification of the secret information on 28-11-2000, ascertained that appellant Mahadeo was in the field. That was in consonance with the information which they had already received. It is also borne out on the evidence that Police Constables Subhash and Rajendra, when sent for verification of the secret information on 28-11-2000, ascertained that appellant Mahadeo was in the field. That was in consonance with the information which they had already received. Therefore, there is reason to accept that evidence to hold that appellant Mahadeo was present at the time when the raid was carried out. In accepting the evidence of Police Officers, as has been rightly pointed out by the learned Counsel for the appellants, the evidence of panch witness Gajanan Umale is totally brushed aside and as such, it is not all taken into consideration. The reasons are obvious as he was very much associated with P.I. Patil, as he was actually working under him as Police Head Constable for couple of years and moreover, even after retirement, he is having his place of residence in the vicinity of the Police Station. Even panch witness Shyam, who was not examined as a witness in the Court, has to be characterised as a stock witness of police having regard to the admitted fact that he was very much working in the Police Station as Sweeper. Therefore, I have no hesitation in accepting the criticism made by the learned Counsel for the appellants, so far as independent witness Gajanan and panch Shyam are concerned. But with the accepted and proved factual position as to the seizure of opium from the field, even in the presence of appellant Mahadeo, it has to be seen whether the appellant Mahadeo could be said to be in conscious and exclusive possession of the contraband article. In this connection, the learned Counsel Mr. Tiwari has placed reliance on the decision of the Apex Court in 2000 Cri.L.J. 18 in (Krishnan Mohar singh Dugal v. State of Goa)2. In that case, according to the prosecution evidence, Charas was recovered in pursuance of disclosure statement made by the accused. The evidence, however, showed that the police were already informed about the place where Charas was kept and Coconut trees from whose stem Charas was found was standing at an open space accessible to all. Therefore, the Apex Court held that it cannot be said that it was the accused who had concealed the Charas there and that it was found out only on the basis of the disclosure statement made by accused. Therefore, the Apex Court held that it cannot be said that it was the accused who had concealed the Charas there and that it was found out only on the basis of the disclosure statement made by accused. Therefore, the conviction of the accused was set aside. 30-A. In any opinion, the case before hand stands on a better footing in the sense it is not claimed by the prosecution that when interrogated initially when the raiding party entered the field, P.I. Patil when informed appellant Mahadeo about the information and their object of visiting the field to take search for having received information about possession of opium, disclosure was made by appellant Mahadeo and more particularly, in respect of opium that was kept hidden under the heap of rotten onions in the field. If that is so, then even accepting that appellant Mahadeo was present, he being owner of the field, he can be presumed to be in ostensible possession of the field and it can be said that the appellant had concealed that opium beneath the heap or atleast he was knowing that the opium was concealed beneath the heap of onions. That is to say that conscious and exclusive possession of opium, in such state of affairs cannot be attributed to appellant Mahadeo. That is much more so when, as rightly pointed out by Counsel for the appellant that the field being open, was accessible to all and that it was abutting the National High was and that the defence witness Supdaji, as claimed by him, was in occupation of the hut being living there with his family. In such a situation, even if it is accepted that appellant Mahadeo, though he had employed defence witness Supdaji for agricultural operations he must be visiting the field and that is much more so, when, as per the record, there was standing crop in the land. Therefore, mere presence of appellant Mahadeo at the time when the raiding party entered the field, in the absence of any information being given or disclosed by the appellant or there being any evidence showing appellant's connection so far as dealing with the opium is concerned, it cannot be inferred even that appellant Mahadeo has had his hand in connection with the opium that was recovered from the heap. 30-B. The learned Counsel for the appellant had also placed reliance on the decision of our High Court in 1996(3) Bom.C.R. 410 : 1996 Cri.L.J. 148, (Rubyana @ Smita Sanjib Kali v. State of Maharashtra)3, wherein in the raid carried out in the rental flat on information received that the appellant who was residing in that flat was doing business of selling narcotic drugs, narcotic substance was recovered and the trial Court, on the basis of fact that the appellant was occupant of the flat, found him responsible and accountable for possession of the contraband that was seized therein. The High Court, however, observed as under : "The sine qua non for attracting the penal provisions, viz. sections 21 and 21 of the N.D.P.S. Act, and section 25 read with section 7 of the Arms Act is that the appellant must be found in possession of the contrabands and the fire arms, The term "possession" is not defined in the N.D.P.S. Act. The term "possession" has been judicially construed to mean, in various decisions, as under : "Possession" implies dominion and consciousness in mind of the person having dominion over an object that he has it and he can exercise it. Possession must be conscious and intelligent possession and not merely the physical presence of the accused in proximity or even in the close proximity of the object. In my opinion, having regard to the facts before hand, the ratio land down in the above case is applicable on all force to the case in hand. 31. The learned Counsel also sought reliance on the decision of our High Court in 1999(Supp.) Bom.C.R. (N.B.)691 : 1999(1) Mh.L.J. 643 , (Bindersing Nirmaising Kaili v. State of Maharashtra)4. In that case, contraband article i.e. opium was seized from dhaba owned by the accused, in fact, contraband opium was found not inside the dhaba but outside it. The place where polythene bag containing opium packets was found open and accessible to all and was not in exclusive possession of the accused only. Therefore, the Court held that it could not be said that the accused was in exclusive and conscious possession of the contraband opium. The place where polythene bag containing opium packets was found open and accessible to all and was not in exclusive possession of the accused only. Therefore, the Court held that it could not be said that the accused was in exclusive and conscious possession of the contraband opium. In the case before band, having regard to accessibility to the field to all, though the accused was owner and occupier of the field and that the defence witness Supdaji was also occupying the hut therein, as he was very much employed by the appellant Mahadeo, it is difficult to hold that appellant was in conscious and exclusive possession of the opium that was found beneath the heap of rotten onions, though in the field. 32. In this context, the learned A.P.P. placed reliance on the decision of the Apex Court in 2003 Cri.L.J. 3868, (Madan Lal another v. State of Himachal Pradesh)5. In that case, the car carrying accused persons was intercepted and charas was seized from the car. The accused persons travelling in the car were knowing each other. How they travelled together from the same destination in a vehicle which was not a public vehicle was not explained by the accused. Therefore, applying the presumption under section 35 of the N.D.P.S. Act, it was found that the evidence clearly establishes that appellant knew about transportation of charas, and each had role in the transportation and possession with conscious knowledge. Even the driver of the car cannot be spared. The Apex Court, in the facts and circumstances of the case as stated above, found that possession of the contraband was conscious as the accused therein knew about transportation of charas and that each had a role in transportation and possession with conscious knowledge. In the case before hand, so far as opium that was found beneath the heap of Onions is concerned, though in the field of the appellant Mahadeo, there is absolutely no clue to come to the conclusion that appellant Mahadeo had knowledge that opium was in fact hidden beneath the heap of Onions. Therefore, the ratio laid down by the Apex Court in this case has no application so far as our case is concerned. 33. It is a matter of record and even the prosecution has also not claimed that any contraband article was found in possession of appellant Mahadeo when his personal search was taken. Therefore, the ratio laid down by the Apex Court in this case has no application so far as our case is concerned. 33. It is a matter of record and even the prosecution has also not claimed that any contraband article was found in possession of appellant Mahadeo when his personal search was taken. It is not the case of prosecution that appellant Mahadeo was in the hut where appellant Sk. Noor was found sitting with the suitcase that was lying by his side and was searched. There is absolutely no evidence showing any link between appellants Mahadeo and Sk. Noor, so that it can be inferred that appellant Mahadeo was very much concerned with the contraband opium that was found beneath the onions outside the hut, so also opium that was found in the suitcase that was with the appellant at the place where he was sitting in the hut. In this context, if we refer to the secret information that was received, which was reduced into writing vide Exh. 31, nothing is mentioned about direct concern of appellant Mahadeo with the dealings of the person from Madhya Pradesh in opium, except the fact that Mahadeo Gavai was taking an amount of Rs. 100/- per day for their stay in the field. That apart, in the evidence, both the Police Constables Subhash and Rajendra have given different version about the information that was received. Police Constable Rajendra (P.W. 5) has stated in his evidence that one truck driver came to them and told that near Janta Petrol Pump, near Calcutta dhaba one person from Madhya Pradesh is selling illegally opium in the field on Mahadeo Gavai. While witness Subhash (P.W. 1), who was with the Police Constable Rajendra, in his evidence stated that one person got down from the truck and told them that some people come to the field of Gavai near Calcutta dhaba wherefrom opium is sold to the truck drivers. That apart, there is absolutely no evidence to show that appellant Sk. Noor was dealing with opium with appellant Mahadeo in his field. The learned Counsel pointed out from the evidence that police witnesses Subhash and Rajendra have not identified appellant Mahadeo in their evidence. They claim that when they visited the field, they saw one person having seated on the parapet wall of the well. Noor was dealing with opium with appellant Mahadeo in his field. The learned Counsel pointed out from the evidence that police witnesses Subhash and Rajendra have not identified appellant Mahadeo in their evidence. They claim that when they visited the field, they saw one person having seated on the parapet wall of the well. But, in their evidence before the Court, they could not recognize and identify that the said person was appellant Mahadeo. Therefore, merely because appellant. Sk. Noor was apprehended in the hut and was found in possession of the contraband article, that was kept in the suitcase, which was in his possession, it is difficult to hold that appellant Mahadeo being owner and occupier of the hut and field, he knew that in the suitcase that was with him contained opium, much less the opium that was found hidden in the heap of rotten onions in the field. Therefore, the prosecution has utterly failed to prove that the contraband opium was in conscious and exclusive possession of appellant Mahadeo and as such, appellant Mahadeo cannot be held accountable for recovery of that opium from the field. The conviction of appellant Mahadeo, as held by the trial Court, cannot sustain. 34. Mr. Shyam Dewani, learned Counsel appearing for appellant Sk. Noor, in the background of factual position that appellant Sk. Noor was not made aware of his right to be searched as contained in section 50(1) of the N.D.P.S. Act, alleged that recovery of opium from the suitcase, which was attributed to him by the prosecution stands vitiated in view of pronouncement of the judgment of the Apex Court in 1999(6) S.C.C. 172 (supra). To reinforce and substantiate his submission, the learned Counsel placed reliance on the decision of the Apex Court in 1999(7) S.C.C. 309 , (Kalayath Nassar v. State of Kerala)6, in that case, no compliance was made by the Investigating Officer because the accused therein did not make request on his own that the search should be conducted in presence of the Gazetted Officer or Magistrate. The Apex Court held that merely because the accused did not ask for, it cannot be said that there was no need to inform him of that right. The Apex Court reiterated that requirement of informing the accused of his right to be searched in the presence of a Gazetted Officer or Magistrate is mandatory. The Apex Court held that merely because the accused did not ask for, it cannot be said that there was no need to inform him of that right. The Apex Court reiterated that requirement of informing the accused of his right to be searched in the presence of a Gazetted Officer or Magistrate is mandatory. The legal proposition that is laid down in this case by the Apex Court is not disputed. But, then, the primary question that falls for consideration is whether in the case at hand actually it was necessary to make compliance of the provisions contained in section 50(1) of the N.D.P.S. Act when actually no personal search of the appellant was done. Recovery of opium from the possession of the appellant accused was not from his personal search. 35. Reliance is also placed on the decision of our High Court in 1993(2) Bom.C.R. 226 : 1993 Cri.L.J. 3624, (Matlub Khan Rehmat Khan v. State of Maharashtra)7. In that case, when the raiding party entered the room which belonged to some third person, the accused, who was sitting, stood up. That, a pot containing large quantity of brown sugar was in front of accused with ten small packets of brown sugar and silver paper. No other evidence was there to connect the accused with the activity of either possessing brown sugar or preparing it for sale. In view of this position, the accused was found not accountable for the contraband article that was in the pot. The factual position in the case before hand is different. The suitcase which contained contraband article was found by the side of the appellant in the hut where he was sealed. The appellant did not disown the suitcase. In addition to that, besides accused, there was no one in the hut when the raiding party entered the hut. That apart, the appellant has not explained in any manner about his presence at that time in the hut. 36. Reliance is also placed on the decision of our High Court in 2001(Supp. 2) Bom.C.R. 94 : 2001(3) Mh.L.J. 910 , (Parchal @ Zilliza Isuchurkwa v. State of Maharashtra)8. In that case, before effecting recovery of the narcotic drugs from the accused, the accused was not apprised of her right to be searched before the nearest Gazetted Officer or nearest Magistrate and therefore, recovery was rendered suspect thereby vitiating conviction and sentence. 2) Bom.C.R. 94 : 2001(3) Mh.L.J. 910 , (Parchal @ Zilliza Isuchurkwa v. State of Maharashtra)8. In that case, before effecting recovery of the narcotic drugs from the accused, the accused was not apprised of her right to be searched before the nearest Gazetted Officer or nearest Magistrate and therefore, recovery was rendered suspect thereby vitiating conviction and sentence. In that case, prosecution had not proved beyond reasonable doubt that accused was apprised of his right as mandated under section 50(1) of the N.D.P.S. Act. It is crystal clear that in order to apply the ratio of this decision, as also of the Apex Court in 1999(6) S.C.C. 172 (supra), it is necessary to decide whether personal search of the appellant was required to be taken or the recovery of the contraband article was the result of personal search of the appellant. 37. Mr. Shyam Dewani, learned Counsel for the appellant Sk. Noor has placed reliance on the Full Bench decision of our High Court in 1996(4) Bom.C.R. 185 : 1996(2) Mh.L.J. 280 , (Ebanezer Adebaya @ Monday Obtor v. B.S. Rawat, Collector of Customs, R L, New Delhi and another)9. In this case, the Court has explained the impression "to search any person" in section 50(1) of the N.D.P.S. Act. It means to search the articles on person or body of person to be searched, as also search of articles in immediate possession such as bag or other luggage carried by him or in physical possession of the person to be searched. It would not and cannot be extended to include search of bag or luggage which is presented to be in possession of the person even though it may be lying in a house or Railway Compartment or at the Air Port. It has no applicability also to a case of search of a place, conveyance of a house if accused is physically present at the time of search. The main object of section 50 of the Act is to avoid the allegation of planting something or of fabricating evidence by the prosecution or the authorised Officer. If, the contraband is recovered in a search of a house, building, conveyance of public place, section 50 will not be attracted. If the narcotic drugs are recovered from the baggage which was not in actual possession of the accused, the question of compliance with section 50 does not arise. 38. If, the contraband is recovered in a search of a house, building, conveyance of public place, section 50 will not be attracted. If the narcotic drugs are recovered from the baggage which was not in actual possession of the accused, the question of compliance with section 50 does not arise. 38. It is very material to note that the trial Court, placing reliance on the Full Bench decision of our High Court, found in the case at hand that when the seizure was not from the personal search of the appellant, but was from the suitcase which was presumed to be in his possession, compliance of requirement under section 50(1) of the N.D.P.S. Act was not necessary. In other words, the trial Court found that it was not necessary for the Investigating Officer or the searching Officer to inform the appellant making him aware of the right to be searched as envisaged under section 50(1) of the N.D.P.S. Act. In this case, the Full Bench of our High Court examined applicability of section 50 of the Act. It classified the phrase "to search in person" appearing in section 50 of the Act in four categories which read thus: - a) search of articles on the person or body of the person. b) would include search of articles in immediate possession such as bag and other luggage carried by him or in physical possession of the person searched, or c) would include search of bag or luggage which are presumed to be in possession of the person even though it may be lying in a house or Railway Compartment or at any Airport, or d) whether the application of section 50 can be extended to a case of search of a place or a conveyance or a house if the accused is physically present, at the time of search." 39. The Full Bench then after examining up to date case law on the subject-matter was pleased to hold "therefore 'personal search' would be confined to Clauses (a) and (b) to the paragraph 5 under section 50, but it would not include and cannot be extended to Clauses (c) and (d) of paragraph 5 as mentioned above". 40. In the case before hand, it is borne out on the evidence on record that appellant Sk. 40. In the case before hand, it is borne out on the evidence on record that appellant Sk. Noor was present in the hut and when the raiding party entered the hut, he was found sitting and the suitcase was lying by his side. It is not disputed that search of the suitcase was taken and contraband article namely opium was recovered from it. It has come in the evidence that appellant Sk. Noor disclosed when interrogated that the suitcase belonged to his. That apart, he did not disown it. Therefore the present case is covered by Clauses (c) and (d) as the prosecution is alleging that contraband opium was seized from the suitcase found near accused Sk. Noor in the hut situated in the field. The suitcase was not in immediate possession of the accused nor it was carried by him. Had it been so, then in that case, as laid down by the Apex Court and also by the Full Bench of our High Court, personal search of the appellant in that case was necessary. It being a case of presumed possession falling in the category of "c" and also category "d", since the appellant was very much present in the hut, his personal search or for that making him aware of the right under section 50(1) of the N.D.P.S. Act was not necessary. 41. In the case of (Ab. Rashid v. State of Gujarat)10, 2000(5) Bom.C.R. (S.C.)442 : 2000 Cri.L.J. 1384, the gunny bags stacked in the auto rickshaw driven by accused therein were found to be containing charas. Repelling the contention that provisions of section 50(1) of the N.D.P.S. Act were not followed. The Supreme Court held that the place where the gunny bags were found stacked in the vehicle was not inextricably connected with the person of the accused and hence, it was an ideal exercise in the case of consider whether there was non-compliance of section 50. 42. In the matter of (Kalema Tubema v. State of Maharashtra)11, 2000(5) Bom.C.R. (S.C.)545 : 1999(8) S.C.C. 257 , the accused arrived at Satara International Airport, Mumbai and when the Intelligence Officer of Narcotic Bureau checked one of his luggage, two kgs. of heroine was detected. The Apex Court held on these facts that as the search was not a search of the 'person' of the accused, section 50 of the Act is not attracted. of heroine was detected. The Apex Court held on these facts that as the search was not a search of the 'person' of the accused, section 50 of the Act is not attracted. Therefore, in view of the legal position as to requirement of provision contained in section 50(1) of the N.D.P.S. Act vis-a-vis the facts of the case before hand and in particular, in respect of appellant Sk. Noor, the contention of the learned Counsel for the appellant that the recovery as well as conviction of the appellant is vitiated due to non-compliance of section 50(1) of the N.D.P.S. Act merits no consideration and it has no substance. 43. The learned Counsel, challenging the validity and legality of search and seizure of opium from the possession of the appellant, contended that there was no compliance of provisions of section 42(1) and (2) of the N.D.P.S. Act. The factual position that emerges on the evidence on record, of course based on the evidence of Police Officers namely P.I. Patil, P.I. Subhash and P.C. Rajendra, is crystal clear. It has come in the evidence that on 26-11-2000 Police Constable Subhash and Rajendra received information and accordingly, they informed P.I. Patil. It is needless to say that if the search and recovery is made on the basis of or on receiving the information by the empowered Officer, it is in cumbent on the prosecution to establish strict compliance of section 42 of the N.D.P.S. Act, as failure thereof renders consequent search and seizure suspect. Section 42 provides that if the Officer has reason to believe from either personal knowledge or from prior information received from any person, that any narcotic drug or psychotrophic substance is kept concealed in any building, conveyance or enclosed place, it is imperative for that officer to take down such information or reasons for belief in writing and to send a copy thereof to his immediate Official Superior. The Apex Court, by a catena of decisions, has stated that purpose of this provision, apparently, is to estimate what was the precise information which was earlier in time and what was involvement of the accused as per the said information. The Apex Court, by a catena of decisions, has stated that purpose of this provision, apparently, is to estimate what was the precise information which was earlier in time and what was involvement of the accused as per the said information. Recording of information given by any person is a must, but if empowered Officer has reason to believe from his personal knowledge that the offence under Chapter IV has been committed or materials which may furnish on commission of such offence are concealed in any building etc., he may carry out search or arrest between sunrise and sunset and it is not mandatory that he should record reason of belief. However, if such Officer has to carry out search between sunrise and sunset, he has to record grounds of his belief. Recorded information is required to be transmitted forthwith to the Official Superior and non-compliance of this requirement alone effects the prosecution case. The Apex Court in (State of Punjab v. Balbir Singh)12, A.I.R. 1994 S.C. 1872 : 1991 S.C.C. (Crimes) 634 has interpreted sections 42 of 50 of the N.D.P.S. Act and the ratio which would be gathered from the said rulings runs thus: "Under section 42(1) the empowered officer if has a prior information given by any person, that should necessary be taken down in writing. But if he has reason to believe from personal knowledge that offence under Chapter IV have been committed or materials which may furnish evidence of commission of such offence are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and subset and this provision does not mandate that he should record his reasons of belief. But under the proviso to section 42(1) : if such Officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent, these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under section 42(2) such empowered Officer who takes down any information in writing or records the ground under provisions to section 42(1) should forthwith sent a copy thereof to his immediately Official Superior. If there is total non-compliance of this provision, the same affects the prosecution case. To that extent, it is mandatory. (3) Under section 42(2) such empowered Officer who takes down any information in writing or records the ground under provisions to section 42(1) should forthwith sent a copy thereof to his immediately Official Superior. If there is total non-compliance of this provision, the same affects the prosecution case. To that extent, it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not will be a question of fact in each case.' (5) On prior information, the empowered or authorised Officer while acting under section 41(2) or 42 should comply with the provisions of section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such Officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires failure to take him to Gazetted Officer or the Magistrate would amount to non-compliance of section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact." 44. In the case before hand, P.I. Patil was informed by Police Constables Subhash and Rajendra that in the field of Mahadeo Gavai (appellant Mahadeo) in Ridhora Shiwar, opium is being illegally sold as disclosed to them by the truck driver near pan shop. According to him, he required those Constables to give that information in writing and accordingly, information in writing was given vide Exh. 31. It is further in the evidence of P.I. Patil and also of Police Constables Subhash and Rajendra that on Exh. 31 itself then and there P.I. Patil made endorsement in his handwriting directing both the Constables that they shall, after bandobast duty on 27-11-2000 is over, personally go and verify and ascertain correctness or otherwise of the information so received. It has come in the evidence of P.I. Patil that on 28-11-2000 he called both the Constables and directed them under written orders to ascertain the fact in respect of the information received and to submit detailed report. It has come in the evidence of P.I. Patil that on 28-11-2000 he called both the Constables and directed them under written orders to ascertain the fact in respect of the information received and to submit detailed report. It is then in his evidence that both these constables on that day proceeded to verify the information and after returning to the Police Station at about 2.40 p.m. gave a detailed report in writing vide Exh. 33, in respect of which an entry has been made in the station diary. That, the information about sale of opium in the field of appellant Mahadeo was found to be truthful. It was then on receiving the report (Exh. 33) that P.I. Patil immediately informed telephonically to his Official Superior S.D.P.O., Akola get simultaneously sent written information vide Exh. 16. It is in the evidence of Police Constable Rajendra that he carried the written information and handed over it to S.D.P.O., Akola, for which he was given acknowledgement in writing. It is further pertinent to note that along with the written report (Exh. 46), comprising written information the copy of the report (Exh. 33), verification of the information submitted by the Police Constables Subhash and Rajendra on 28-11-2000 was sent. The evidence of P.I. Patil makes it clear that the information given to him by Police H.C. Subhash was in fact taken down in writing by him and copy of the same was forwarded to the S.D.P.O., Akola. 45. The report (Exh. 33) discloses that a person present in the field of i.e. appellant Mahadeo did ask them whether they want "maal". This report (Exh. 33) also discloses the note of this written information of Police Head Constable Subhash taken in the station diary Entry No. 27, the extract of which is at Exh. 45. It was at 2.40 p.m. on 28-11-2000. It is, therefore, claimed that on 28-11-2000 both these Constables have tested authentically of the secret information and accordingly, reported that in the hut located in the field of appellant Mahadeo, one person from the Madhya Pradesh was illegally selling opium. In the station diary Entry No. 27 (Exh. 45), it is further made clear that this information was telephonically given to the S.D.P.O., Akola and simultaneously a written report of this information was also sent to him through Police Constable Rajendra. In the station diary Entry No. 27 (Exh. 45), it is further made clear that this information was telephonically given to the S.D.P.O., Akola and simultaneously a written report of this information was also sent to him through Police Constable Rajendra. Thus, the claim of P.I. Patil that he has sent written report of the information received by him forthwith to his immediate superior Officer S.D.P.O., Akola vide Exh. 46 is duly corroborated by the version of Police Constables Subhash and Rajendra and contemporaneous documents, reference to which was made earlier. It goes to show that P.I. Patil recorded the information in writing and the same was sent along with written information of Police Constable Subhash (Exh. 33) to S.D.P.O., Akola, who received it at 3.45 p.m. on 28-11-2000. The trial Court, on the basis of this evidence, oral as well as documentary, came to the conclusion that the prosecution has complied with the mandatory provisions of section 42 of the Act fully and therefore, the contention of defence that there was no compliance of section 42 of the N.D.P.S. Act was devoid of substance. 46. Before me much has been made by the learned Counsel for the appellants that the information received first in time was the report in writing given by Constable Subhash vide Exh. 31 on 26-11-2000. It is submitted that P.I. Patil, in respect of receiving this information on 26-11-2000, did not communicate the same immediately to S.D.P.O., Akola. On the other hand, the information in writing was sent to S.D.P.O., Akola on 28-11-2000 vide report (Exh. 46). This was not, according to the learned Counsel, compliance of provisions of section 42(1) of the N.D.P.S. Act inasmuch as it was imperative on the empowered Officer, having received information to record the same or the reasons of his belief and to communicate it to his immediate Superior Official. It is contended that delay in informing the Official Superior by P.I. Patil itself makes suspicious the basic information alleged to have been received by P.I. Patil through Police Constables Subhash and Rajendra. That apart, in the background of the fact that the information was received on 26-11-2000 vide Exh. 31, and sent vide Exh. 46 on 28-11-2000 to S.D.P.O., Akola cannot be said to be the compliance of section 42(2) of the N.D.P.S. Act. 47. The trial Court has rightly rejected this contention of the defence. That apart, in the background of the fact that the information was received on 26-11-2000 vide Exh. 31, and sent vide Exh. 46 on 28-11-2000 to S.D.P.O., Akola cannot be said to be the compliance of section 42(2) of the N.D.P.S. Act. 47. The trial Court has rightly rejected this contention of the defence. It is not the requirement of section 42 that any information received first in time must be taken down in writing and should be sent to the immediate Official Superior by the empowered Officer, even though he might not have any reason to believe that the offence related to narcotic drug or psychotropic substance punishable under Chapter IV has been committed. It is not that mere receiving information by the empowered Officer makes it mandatory for him to inform immediately to his Official Superior. He has to record reasons of his belief that there is substance in the information that was received or conveyed to him. Therefore, unless and until the empowered Officer gets himself ascertained that the information is truthful and believable, it is not necessary for him to take down such information in writing and then send the copy of the same to his Official Superior. The position would have been different if he himself would have received the information. In that case, after receiving information by him, if he has reason to believe then he has to record information in writing with reasons therefor of his belief and then further to inform or commodate the same information to his immediate Official Superior. In any case, the empowered Officer is required to verify truthfulness or authenticity of the information. Therefore, P.I. Patil was justified in directing Police Constables Subhash and Rajendra to verify the information. He was justified in not communicating the written information (Exh. 31) which he received on 28-11-2000 further after the information was verified and P.I. Patil received report (Exh. 33) in that regard on 28-11-2000 and he committed no error in immediately sending the information in writing vide Exh. 46. The learned Counsel for the appellants also made submission that Exh. 46 cannot be said to be the information in writing, as initially the information which was reduced into writing vide Exh. 31 was not communicated to the Official Superior. I do not find any substance in this submission. 46. The learned Counsel for the appellants also made submission that Exh. 46 cannot be said to be the information in writing, as initially the information which was reduced into writing vide Exh. 31 was not communicated to the Official Superior. I do not find any substance in this submission. It is borne out on the evidence on record and it can be seen from Exh. 46 that there is reference to the report (Exh. 33) received from Police Constables on 28-11-2000 in respect of verification of the information which was received and reduced into writing vide Exh. 31. In addition to that, it is a matter of record that along with Exh. 46, a copy of report (Exh. 33) was also submitted and the S.D.P.O. Akola has acknowledged receipt of the same. In such state of factual position, in the case at hand, I do not find any merit in the contention of the appellants regarding non-compliance of section 40(1) and (2) of the N.D.P.S. Act. 18. The decision reported in 2000(Supp.) Bom.C.R. (N.B.)671 : 2000(2) Bombay Criminal Cases 16, (Syed Yusuf Syed Noor v. State of Maharashtra)13, (Bombay High Court) relied upon by the learned Counsel for the appellants, wherein it is held that mere communication on telephone, which is not reduced into writing, is not compliance of section 42 of the N.D.P.S. Act and so, it vitiates the trial. The said authority is of no assistance to the learned Counsel for the appellant having regard to the fact that, in the case in hand, the information was reduced into writing vide Exh. 46 and it was duly communicated to the Official Superior immediately on 28-11-2000. 19. The decision of our High Court in 2002 Bombay Criminal Cases 525, (State of Maharashtra v. Abdul Jahib Abdul Waheb)14, relied upon by the learned Counsel for the appellant, wherein it is held that failure on the part of empowered Officer to take down information received and to send it to the Official Superior is again the mandatory provision, non-compliance of which affects the prosecution case. Again this can be of no assistance to the learned Counsel, so far as the case before hand is concerned. 50. Mr. Again this can be of no assistance to the learned Counsel, so far as the case before hand is concerned. 50. Mr. Mandape, learned A.P.P. has placed reliance on the decision reported in 1995 Cri.L.J. 772 (Rewant Ram v. State of Rajasthan)15, wherein it is found that the Investigating Officer carrying the search was authorised under the N.D.P.S. Act and therefore, he is competent to proceed with the information. This decision negatives the contentions of the learned Counsel for the appellant in the case before hand that P.I. Patil, who was the searching Officer, conducted investigation in the matter and therefore, the trial is vitiated. 51. The learned Counsel for the appellants seriously criticised the search and seizure conducted by P.I. Patil on the ground that deliberately independent persons were not selected to act as panchas and instead, the persons who were closely associated with him and the Police Station namely witness Gajanan and one Shyam were selected to act as panchas. It is pointed out that the independent persons were available as many persons were present at the Petrol Pump or at the abutting Calcutta dhaba. The nature and character of witnesses or panchas selected by P.I. Patil if taken into consideration, I have no hesitation in saying that the criticism against P.I. Patil by the learned Counsel for the appellants was justified. It is admitted by witness Gajanan that he was serving in the police department as Police Head Constable and for some period, he was very much under P.I. Patil. He has admitted that he has his shop after his retirement very much near the Police Station. His acquaintance with police even after retirement cannot be denied. Even the manner in which he has given evidence would show that he is not a witness of truth. He has gone to the extent of saying that he cannot tell as to what was in the hut as he did not enter the hut. Therefore, P.I. Patil, which selecting witness Gajanan to act as a panch, did not apply his mind. But, he selected him only on the ground that he was a policeman having worked under him. Therefore, he has to be characterised as a stock witness and therefore, no reliance could be placed on his evidence. The other panch namely Shyam was not examined by prosecution. But, he selected him only on the ground that he was a policeman having worked under him. Therefore, he has to be characterised as a stock witness and therefore, no reliance could be placed on his evidence. The other panch namely Shyam was not examined by prosecution. But, as it is borne out on evidence, this person Shyam has very close association with police as he was working as a Sweeper in the Police Station. In this background, when independent persons were available in abundance, as it is shown by defence in the evidence, P.I. Patil and not act fairly in selecting these two persons only to act as panchas for the raid. 52. The learned A.P.P. in this context submitted that the mere fact that a witness has obliged the Investigating Officer in other instances would not denude him of his independent character. This submission was made in the background that witness Gajanan had acted as a panch earlier, but then merely because he was selected again by P.I. Patil to act as a panch, that by itself does not lose his character as an independent witness, if his evidence inspires confidence. There is no dispute about the proposition that is made by the learned A.P.P. But then, in the facts and circumstances of the case and particularly, having regard to the quality of evidence of witness Gajanan, it is very difficult to hold that witness Gajanan did not lose his character as an independent witness merely because he was an ex-policeman and was associated with police in one way or the other. His evidence does not at all inspire confidence. If that is so, his selection as a panch witness by Investigating Officer P.I. Patil must be said to be at the behest of P.I. Patil as a stock witness. That is much more so when other persons were readily available to act as panchas. 53. But I do not agree with the submissions of the learned Counsel that merely Gajanan was selected as a panch as a stock witness, prosecution case as against the appellant is affected, it is true that in the case of offence under the N.D.P.S. Act, it is requirement of law to choose independent witnesses for the purpose of seizure. But, absence of independent evidence by itself is not sufficient to discard the prosecution case. But, absence of independent evidence by itself is not sufficient to discard the prosecution case. If the evidence of police witnesses is worthy of credit, inspiring confidence, then there is no hurdle in accepting that evidence for holding the accused guilty. Therefore, absence of independent evidence does not bring out any infirmity in the prosecution case. That by itself does not make the prosecution case suspicious and doubtful. 54. The Counsel for the appellants raised contention that P.I. Patil who was empowered Officer though carried out raid and had searched and seized the contraband article, himself acted as an Investigating Officer in this case and thereby prejudice is caused to the accused. It is submitted that this vitiates the trial. As against that the learned A.P.P. submitted that though P.I. Patil carried out investigation, no prejudice is caused and therefore, the trial is not vitiated. To support his contention, he placed reliance on the decision in 2001 Cri.L.J. 2272, (Thangam v. State)16, wherein relying on the decision of the Apex Court in State of Punjab v. Balbir Singh, in 1991 S.C.C. (Crimes) 634 (supra) it was held that the provisions of the Code of Criminal Procedure are applicable when an offence under the Indian Penal Code or any other law is being inquired into, tried and otherwise dealt with. From the words "otherwise" points to the fact that the expression "dealt with" is all comprehensive and that investigation, inquiry and trial are some of the aspects dealing with the offence. Consequently, the provisions of the Code of Criminal Procedure shall be applicable insofar as they are not inconsistent with the N.D.P.S. Act to all warrants, searches, seizures or arrest made under the Act. But when a Police Officer carrying on the investigation including the search, seizure or arrest empowered under the provisions of the Code of Criminal Procedure, comes across the person being in possession of narcotic drugs or psychotropic substances then two aspects will arise. If he happens to be one of those empowered Officers under the N.D.P.S. Act also then he must follow thereafter the provisions of N.D.P.S. Act and continue the investigation as provided thereunder. In view of this pronouncement, which is based on the ratio laid down by the Apex Court, I do not think that the contention raised by the learned Counsel for the appellant survives. 55. Mr. In view of this pronouncement, which is based on the ratio laid down by the Apex Court, I do not think that the contention raised by the learned Counsel for the appellant survives. 55. Mr. Shyam Dewani, learned Counsel for the appellant Sk. Noor submitted that the trial Court has not appreciated the evidence of both the defence witnesses in correct prospective. The thrust of contention of the learned Counsel was that their evidence is to be weighed and appreciated at par with that of prosecution witnesses. In this respect, the learned Counsel pointed out that defence witness Anil (D.W. 1) was admittedly, as per the prosecution, called for raid bringing with him weights and measures and balance to weigh the contraband articles that would be found in search to be carried out. Prosecution did not examine him for the reason best known to it. Defence has, however, examined him and in his evidence before the Court, he has supported the defence admitting the fact that his weights and measures and balance were called for the raid. He, however, denied that he accompanied the raiding party and the contraband article found was weighed by him on his balance. It is submitted with emphasis by the learned Counsel that when this witness was selected by the Investigating Officer as a witness for the raid and when his statement was recorded during the course of investigation by the Investigating Officer, merely because he was not examined by the prosecution as a prosecution witness, his character does not change, merely because defence has examined him. I do not find any substance in this submission. If we go through the cross-examination of this witness by the prosecution, he has admitted that in his statement recorded by the Magistrate he has stated that the opium was measured in his presence and the samples were collected in his presence. But at the same time, this witness, in his evidence before the Court, when called as a defence witness, has audacity to deny the fact. It is true that his admission will be of no assistance to the prosecution. But that itself shows how credible the witness is. Therefore, the assessment of his evidence by the trial Court was correct. That is the reason why the defence also cannot get advantage of evidence of this witness. 56. It is true that his admission will be of no assistance to the prosecution. But that itself shows how credible the witness is. Therefore, the assessment of his evidence by the trial Court was correct. That is the reason why the defence also cannot get advantage of evidence of this witness. 56. So far as other defence witness Supdaji is concerned, his evidence is taken into consideration by me on the point of his possession of the hut and land. It is accepted as stated by him, that he was in the employment of appellant Mahadeo. But then that does not impair the exclusive possession of contraband article by appellant Sk. Noor, who alone was found in the hut at the time when the raiding party entered in it. 57. There is contention on behalf of appellants that there was no compliance of provisions of section 57 of the N.D.P.S. Act. However, as rightly pointed out by the learned A.P.P., there has been sufficient compliance of section 57 of the N.D.P.S. Act. The requirement of section 57 is that the empowered Officer has to send within 48 hours next after arrest or seizure, a full report of all the particulars of such arrest or seizure to his immediate Official Superior. In the case at hand, as evidence of P.I. Patil shows, immediately after completing formalities on 28-11-2000, wireless message was sent vide Exh. 52 to the Official Superior. In addition to that, as the record shows compliance report (Exh. 62) giving full details of the raid was sent on 30-11-2000. There is acknowledgment of receipt of wireless message. In that regard, entry has been taken in the station diary. Therefore, by sending report (Exh. 62) which was well within 48 hours, there has been substantial compliance of provisions of section 57 of the N.D.P.S. Act. 58. The learned Counsel submitted that on the evidence on record it is not established beyond reasonable doubt that the sample that was sealed and seized was the sample that was received by the Chemical Analyser for analysis. In this connection, it is stated that P.I. Patil has in his evidence frankly stated that the specimen seal was not deposited in the Police Station or with the Malkhana Mohrir. It was retained with him. It is also pointed out that P.I Patil stated that the C.A. samples were wrapped in brown paper and then sealed. In this connection, it is stated that P.I. Patil has in his evidence frankly stated that the specimen seal was not deposited in the Police Station or with the Malkhana Mohrir. It was retained with him. It is also pointed out that P.I Patil stated that the C.A. samples were wrapped in brown paper and then sealed. It is submitted that there is no evidence to show that when the property was received by the Malkhana Mohrir. There is also no evidence to show when the property was handed over to witness Damodhar (P.W. 3), who ultimately carried in to the C.A. It was mandatory for the empowered Officer to hand over the specimen seal to the P.S.O. or to the Malkhana Mohrir when the property was handed over to his custody. It is submitted that, in such circumstances, when there is no evidence to show as to when the samples sealed or specimen seal was received by the C.A., there is every possibility of the C.A. sample being tampered with. 59. The learned A.P.P. repelled these submissions pointing out that the property was received by Malkhana Mohrir as handed over by P.I. Patil on 28-11-2000. It is further in the evidence of Police Constable Damodhar that he received the property comprised of samples in sealed condition from Malkhana Mohrir. Then, as could be seen from the report of C.A. (Exh. 61), the property when received was found to be in sealed condition and the seal there of tallied with the specimen seal that was forwarded along with the forwarding letter (Exh. 59) which was dt. 30-11-2000. The learned A.P.P., therefore, submitted that there was no occasion for tampering with the seal. 60. In this connection, if we go through the evidence of P.I. Patil, Police Constable Wasudeo Tayade-Malkhana Mohrir and Police Constable Damodhar, it is crystal clear that the property sealed at the time of seizure as per seizure memo (Exh. 19) including the C.A. samples (S1 and S2) was received by Malkhana Mohrir on the same day i.e. 28-11-2000 in the same condition and in receipt thereof entry has been made in the Malkhana register. It is further in the evidence of witness Tayade that on 30-11-2000 the same sealed property was handed over to Police Constable Damodhar in the same condition. It is further in the evidence of witness Tayade that on 30-11-2000 the same sealed property was handed over to Police Constable Damodhar in the same condition. The evidence of Police Constable Damodhar further makes it clinching that the said sealed sample was handed over by him on 4-12-2000 to the office of C.A., for which acknowledgment was given which was produced on the record. There is entry to that effect in the station diary. There is contemporaneous documentary evidence supporting the claim of these witnesses that the sealed sample was parted with by P.I. Patil immediately on 28-11-2000 by giving it to Malkhana Mohrir, who then handed over it to Police Constable Damodhar on 30-11-2000 and he, in turn, handed over it to the office of Chemical Analyser in the same condition. It is true that the specimen seal of P.I. Patil was not deposited by him at the time when the property was handed over to the Malkhana Mohrir. It is also clear from the forwarding letter (Exh. 59) that the specimen seal is embossed on it. This forwarding letter was received in the office of C.A. through Police Constable Damodhar when he handed over the property. It is not that the specimen seal was affixed on the sealed sample subsequently after the property was handed over to the Malkhana Mohrir. Therefore, the statement of P.I. Patil that seized sample was sealed after it was wrapped in brown paper no way gives rise to the inference that the sealing and affixing specimen seal on the sample was done subsequently. In this view of the matter, I do not think, that it can be said that there was tampering with the seal. 61. It is also contended that Police Constable Damodhar though received property on 30-11-2000, he handed over it to the Chemical Analyser on 4-12-2000. This, according to the defence, makes the matter suspicious and that is much more so when the witness has admittedly visited the office of Chemical Analyser on 3rd December, 2000 and handed over the property in some other crimes. Witness Damodhar has frankly stated in his evidence that though he reached Nagpur on 1st December, 2000 and visited the office of C.A. on 2nd December, 2000 and handed over the property in other crime for analysis, the property in question was in fact handed over on 4th December, 2000. Witness Damodhar has frankly stated in his evidence that though he reached Nagpur on 1st December, 2000 and visited the office of C.A. on 2nd December, 2000 and handed over the property in other crime for analysis, the property in question was in fact handed over on 4th December, 2000. He could not hand over the property on 2nd December, 2000 for the reasons assigned by him. It has further come in the evidence that 3rd being the holiday, he was required to visit the office on 4th December, 2000 when he handed over the property in this crime. I do not think that anything could be said specious having regard to the facts stated by this witness frankly before the Court. It is significant to note that the property, as sealed at the time when the seizure was made, was handed over immediately on 28-11-2000 to Malkhana Mohrir with whom it was till 30-11-2000 till it was handed over to Police Constable Damodhar. There is consistent evidence that the property though changed hands, it still remained in the same sealed condition. It is mentioned in the report of C.A. that the property that was received was in sealed condition with the seal as per the specimen seal in the forwarding letter. If that is so, merely because there was delay of 2-3 days in handing over the property to the C.A., it cannot make the matter suspicious and doubtful. In the earlier part of the judgment, I have, therefore, said that the factum of seizure of the contraband article, the factum of the sealed sample being received in the same condition by the C.A. is established and the documentary evidence in support of it has not been challenged by the defence. Therefore, these latches if at all could be said in handing over the property to C.A., even high-handed negliance on the part of P.I. Patil in retaining specimen seal with him, in the facts and circumstances of the case nowhere affects the credibility of prosecution evidence. Therefore, no inference could be drawn that there was tampering of the seal. The trial Court has rightly accepted the evidence as to seizure of contraband article which ultimately proved to be opium, a narcotic substance as defined under the N.D.P.S. Act being recovered from the possession of appellant Sk. Noor. Therefore, no inference could be drawn that there was tampering of the seal. The trial Court has rightly accepted the evidence as to seizure of contraband article which ultimately proved to be opium, a narcotic substance as defined under the N.D.P.S. Act being recovered from the possession of appellant Sk. Noor. As such, the trial Court has rightly found him guilty for the offence with which he was charged. 62. In the relevant, on the evidence on record, prosecution has utterly failed to prove that appellant Mahadeo has committed an offence with which he was charged. Hence, he is to be acquitted by setting aside the order of conviction and sentence passed by the trial Court against him. So far as appellant Sk. Noor is concerned, for the reasons recorded, I find that the trial Court was right in holding him guilty for the offence with which he was charged. Consequently, the order of conviction and sentence passed by the trial Court as against him calls for no interference and has to be confirmed by dismissing his appeal. Hence, the order. ORDER The criminal appeal No. 134 of 2002 is allowed. The conviction and sentence passed against appellant Mahadeo s/o. Motiram Gawai is set aside. He is acquitted and he be released forthwith if not required in any other case. The conviction and sentence awarded to appellant Sk. Noor Sk. Jama @ Noor s/o. Ajmeri @ Noormohammad Jama Ajmeri by the trial court in Sessions Trial No. 28 of 2001 is maintained. His appeal bearing Criminal Appeal No. 203 of 2002 is dismissed. Order accordingly.