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2005 DIGILAW 568 (KER)

Swarnaki v. State of Kerala

2005-08-24

K.PADMANABHAN NAIR, V.RAMKUMAR

body2005
Judgment :- Padmanabhan Nair, J. Factual Matrix The accused in Sessions Case No.35 of 1998 on the file of the I Additional Sessions Judge, Kollam is the appellant. The appellant was found guilty of an offence punishable under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act” for short”), convicted and sentenced to undergo rigorous imprisonment for a term of two and a half years and also to pay a fine of Rs.15,000/- and in default of payment of fine to undergo simple imprisonment for a term of six months. 2. At about 2.45 p.m. on 22.4.1997 the Sub inspector of Police, Parippally and police party, which included P.W.3, a woman Police Constable, were proceeding to arrest one Vilasini against whom a Non Bailable Warrant was issued by the Judicial First Class Magistrate, Paravoor in S.T.No. 1431 of 1996. When the police party reached near a bunk shop situated on the eastern side of N.H.47 on the puramboke land south of Paripally junction, they saw the appellant standing near the shop. On seeing the police party, the accused became perplexed and fidgety. P.W.5 became suspicious and questioned the appellant in the presence of P.W.3 as to what exactly was the reason fore her perplexity. She informed P.W.5 that she was keeping packets of ganja for sale. On getting that information, P.W.5 informed his immediate superior officer regarding the information he had received and informed the appellant whether she requires the presence of a Gazetted Officer for effecting the seizure of ganja from her possession. She informed P.W.5 that she requires the presence of a Gazetted Officer. P.W.5 prepared a request and sent one of his constables to the Tahsildar’s office at Kollam. At about 4.00 p.m. Tahslidar came and in the presence of the Tahsildar, P.W.5 questioned the appellant regarding her name and address and also about the ganja. She gave her name and address and handed over one packet of ganja which was kept at her waist. She also produced another 17 packets of ganja kept in the shop. The 18 packets were opened and examined. All the 18 packets contained dried ganja. The appellant was arrested at 4.15 p.m. The ganja was got weighted with the help of one Ramachandran Achari. The weight of total ganja found in all the 18 ganja packets was 25 grams. She also produced another 17 packets of ganja kept in the shop. The 18 packets were opened and examined. All the 18 packets contained dried ganja. The appellant was arrested at 4.15 p.m. The ganja was got weighted with the help of one Ramachandran Achari. The weight of total ganja found in all the 18 ganja packets was 25 grams. 5 grams of ganja was taken in a polythene cover as sample. The remaining 20 grams was put in another polythene cover. Both those polythene covers were wrapped with brown papers. Both those polythene covers were wrapped with brown papers. P.W.5 obtained the signatures of accused and attestors on the two packets. The Tahsildar had also affixed his signatures to the sample packet as well as the packet containing the remaining quantity. Both packets were tried using wine. As the officer had no personal seal, he sealed the packets using a 10 paise coin. The paper pieces in which the ganja was kept and a cover were also seized. The accused was arrested. The accused and the contraband articles were produced before Court. Subsequent investigation in the case was conducted by P.W.8. When the investigation was over, P.W.6 filed the final report. When the accused appeared before the learned Sessions Judge, charge under Section 20 (b) (i) of the NDPS Act was framed against her after hearing both sides. The charge was read over and explained to the appellant. She understood the same and pleaded not guilty. On the side of prosecution, P.Ws.1 to 8 were examined. Exhibits P1 to P4 proved and marked. M.Os. 1 to 3 were identified. 3. P.W.1 is an independent attestor to Exhibit P1 mahazar under which the contraband article was seized. He turned hostile and not supporting the prosecution case. P.W.2 is the Tahsildar, in whose presence the contraband articles were seized. P.W.3 is the woman constable who helped P.W.5 in effecting the seizure. P.W.4 is a police constable, who also accompanied P.W.5. He was sent for securing the presence of P.W.2. P.W.5 is the detecting officer. He effected the Seizure of the contraband article, arrested the accused and registered Exhibit P3 F.I.R. P.W.6 filed the final report after investigation. P.W.7 is the Joint Director, Forensic Science laboratory, Thiruvananthapuram, who proved Exhibit P4 Chemical Analysis Report. Exhibit P4 shows that the contraband article was ganja. P.W.8 is the Circle inspector who conducted the investigation. He effected the Seizure of the contraband article, arrested the accused and registered Exhibit P3 F.I.R. P.W.6 filed the final report after investigation. P.W.7 is the Joint Director, Forensic Science laboratory, Thiruvananthapuram, who proved Exhibit P4 Chemical Analysis Report. Exhibit P4 shows that the contraband article was ganja. P.W.8 is the Circle inspector who conducted the investigation. 4. After the prosecution evidence was over, the appellant was questioned under Section 313 of the Code of Criminal Procedure. She denied all incriminating circumstances brought against her and stated the she was innocent. The matter was heard. Since no grounds were made out to acquit the accused under Section 232 of the Code of Criminal Procedure, she was called upon to enter on her defence. The appellant examined D.Ws. 1 to 2, two independent witnesses to prove that she was not conducting any business from a wheeled cart stand, but she was conducting sale of tea, cigarettes, etc. using a able with flat top. The learned Sessions Judge after considering the entire evidence, found the appellant guilty of the offence punishable under Section 20 (b)(i) of the NDPS Act, convicted and sentenced her as aforesaid. That conviction and sentence are under challenge in this appeal. 5. When the case came up for the hearing before the learned single judge, it was argued that there was no evidence to show that any ganja was seized from the possession of the appellant or she owns a moving bunk shop fitted four wheels. It was also argued that there is violation of the provisions of Sections 50, 55 and 57 of the NDPS Act and hence she is entitled to acquittal. It was argued that the searching officer did not inform the appellant regarding her right to be searched in the presence of a Gazetted Officer or Magistrate. It was further argued that the officer did not inform the appellant that she has an option to select between a gazetted Officer or a Magistrate as in this case the appellant was only told that if she requires, she will be searched in the presence of a Gazetted Officer. Similar factual situation arose in Crl. A.385 of 1999 and that question was referred to a Division bench for consideration. Hence, the learned Single Judge referred this case also to be considered by a Division Bench. The matter was placed before us for hearing. 6. Similar factual situation arose in Crl. A.385 of 1999 and that question was referred to a Division bench for consideration. Hence, the learned Single Judge referred this case also to be considered by a Division Bench. The matter was placed before us for hearing. 6. We heard Sri. Roshen D. Alexander representing Advocate Sri. Bechu Kurian Thomas, the counsel appearing for the appellant and Sri. Sujith Mathew Jose, the learned Public Prosecutor. Evidence 7. Exhibit P1 is the mahazar prepared at the time of search. It gives the entire details of the actions taken by P.W.5 at the time of search and seizure. In the mahazar it is stated that on seeing the change of expression of the appellant, he asked her as to what exactly was the reason for her perplexity. Then she confessed that she was keeping ganja for sale. In Exhibit P1 it is stated that when P.W.5 asked the appellant as to whether she requires the presence of a Gazetted Officer for effecting the seizure, she answered in the affirmative. It reads as follows:- The mahazar further shows that on receiving the requests from P.W.5, the Tahsildar of Kollam reached the spot at 4.00 p.m. In the presence of Tahsildar, P.W.5 questioned the appellant and at that time she took out a packet of ganja concealed at her waist portion and also another 17 packets kept beneath the tin sheet which was used as roof of the bunk shop. All the 18 packets were opened and examined in the presence of Tahsildar and the same was got weighted with the help of Ramachandran Achari and thereafter it was seized. Exhibit P1 also gives the details of sampling, packing etc. 8. It is argued that only one of the attestor to Exhibit P1 was examined and he turned hostile. According to the appellant, the non-examination of the prosecution case as the contents of the same was not properly proved by examining the independent witness. Exhibit P1 mahazar shows that it was attested by two independent witnesses. Only one of them was examined as P.W.1. The records show that the summons issued to the other attestor was returned with an endorsement that he was no more and he had committed suicide. The prosecution had produced a copy of the death certificate before the Court. The appellant had not made any attempt to show that he was not dead. The records show that the summons issued to the other attestor was returned with an endorsement that he was no more and he had committed suicide. The prosecution had produced a copy of the death certificate before the Court. The appellant had not made any attempt to show that he was not dead. P.W.5, the Sub Inspector of Police, who prepared Exhibit P1, had given evidence. Merely because the independent witness examined to prove Exhibit P1 turned hostile the same cannot be rejected. We accept the evidence of the official witness and hold that the mahazar was properly proved. 9. P.W.1 is an attestor to Exhibit P1 mahazar. He turned hostile and not supported the prosecution case. He admitted his signature in the mahazar. Of course, he denied of having witnesses the seizure of contraband article or its sampling. According to him, he was asked to affix his signature. So, he affixed his signature. P.W.1 had admitted that the appellant was not running a petty shop, but she was using a bunk which was fitted with four cycle wheels which can be pushed from one place to another. She deposed: So, the fact that the appellant was running the business of sundries or grocery from a box like structure with a platform and having a tin sheet roof was admitted by P.W.1. That structure was fitted with four cycle tyres. 10. P.W.2 is the Tahsildar. He deposed as follows: He got a requisition from P.W.5, the Sub Inspector of Police. He reached the spot at about 4.00 p.m. and after his arrival at the place, one packet was taken from the groin area of the appellant and another 17 packets from the shop. All the 18 packets were opened in his presence and the contraband articles were weighed with the help of a goldsmith. He also deposed regarding the sampling and sealing. He had affixed his signature to the packet containing sample taken as well as the packet containing the balance ganja. Of course, during cross examination he had stated that he had no prior acquaintance with the appellant and before conducting the search neither the Sub Inspector of Police nor other constables or witness searched each other. He had also admitted that the Sub Inspector was not possession of the office seal. 11. P.W.3 is the woman police constable who helped P.W.5 in search and seizure. He had also admitted that the Sub Inspector was not possession of the office seal. 11. P.W.3 is the woman police constable who helped P.W.5 in search and seizure. She deposed that she accompanied the Sub Inspector of Police for the purpose of arresting one Vilasini and on the way they went near the petty shop of the appellant. The Sub Inspector questioned the appellant because she appears to be perplexed. She further deposed that during search it was revealed that the appellant was keeping a packet in her person. 17 packets were taken from the shop. She also gave the details of sampling and sealing. During cross examination, she gave the details of the shop. She deposed that it was a shop having a platform, fitted with four wheels and a tin roof. But, she admitted that she does not know about the ownership of the same. She deposed that 17 packets were taken from the roof of the structure. 12. P.W.4 is the Police Constable who accompanied P.W.5. He went to the Tahsildar’s office at Kollam and brought him. He also deposed that one packet was taken from the person of the appellant and rest of the packets from the shop. 13. P.W.5 is the detecting officer. He deposed that he along with the police party was proceeding to arrest one Vilasini and during the course of search for Vilasini, he came near the shop of the appellant and stopped the vehicle. On seeing the police party, the appellant became perplexed. He questioned the appellant the reason for her perplexity. Then she disclosed that she was keeping some packets of ganja for sale. He had asked the appellant whether she requires the presence of a Gazetted Officer for seizing the ganja. The appellant answered in the affirmative. So, P.W.2 was brought. P.W.5 also deposed that one packet was seized from her groin area and 17 packets were seized from the shop. He further deposed regarding the sampling, sealing, etc. 14. The appellant examined D.Ws.1 and 2 to prove that she was doing business by keeping articles on the top of a table and there is no roof for that structure, but a tarpaulin is used to cover the same. D.W.1 deposed that there are other bunk structures having wheels. Those structures were situated about 2-3 metres away from the table used by the appellant. D.W.1 deposed that there are other bunk structures having wheels. Those structures were situated about 2-3 metres away from the table used by the appellant. During cross examination he admitted that he had no idea as to whether the appellant was arrested in connection with sale of ganja. But, he heard about such a news. The evidence of D.W.1 shows that the details of other shops and houses which are situated in the sides of the bunk shop were stated correctly in the mahazar. 15. D.W.2 deposed that he does not know whether the appellant is conducting business in a petty shop having four wheels. He also admitted that he had no direct knowledge about the arrest of the appellant. But subsequently he came to know that the appellant was arrested. 16. The prosecution has not adduced any documentary evidence to prove the ownership of appellant over the bunk shop. The learned Sessions Judge who had occasion to watch the demeanor of the witnesses did not accept the evidence of D.W.1 and D.W.2. We have carefully gone through the evidence. We do not find any reason to hold that the structure from where the contraband articles were seized actually belonged to somebody else and not the appellant based on the evidence of D.Ws.1 and 2. P.W.1, who turned hostile, had admitted that the appellant is doing business from a box like structure which was fitted with four cycle wheels. So, the fact that the appellant was doing business from a box like structure which was fitted with four cycle wheels is established in this case. 17. The evidence of P.Ws.2, 3, 4 and 5 along with Exhibit P1 shows that 18 packets of ganja were seized at about 4.15 p.m. on 22.4.1997. One packet was kept by the appellant in the folds of her cloth at the groin area. The remaining 17 packets were kept beneath the tin sheet used as roof of the bunk shop. It is true that P.W.2 had deposed that one packet of ganja was seized from the person of the appellant in his presence by P.W.3, the woman constable. But Exhibit P1, the contemporaneous record prepared at the time of seizure, shows that even that packet was handed over to P.W.5 by the appellant herself and not taken by any other person from the body of the appellant. But Exhibit P1, the contemporaneous record prepared at the time of seizure, shows that even that packet was handed over to P.W.5 by the appellant herself and not taken by any other person from the body of the appellant. It is also to be noted that the seizure was effected in the year 1997 and the witnesses were examined after 27th May 2000. None of the contradictions pointed out by the appellant are so material as to affect the prosecution case. So, we do not find any merit in the contention raised by the appellant that no contraband articles were seized either from the possession of the appellant or from her shop. VIOLATION OF STATUTORY PROVISIONS AND ITS EFFECT ON THE TRIAL (A) Section 50 of the NDPS Act 18. The next question arising for consideration is whether there is any violation of the provisions of Section 50 of the NDPS Act. 19. It is well settled position of law that provisions of Section 50 of the NDPS Act are mandatory and non-compliance thereof vitiates the trial. That issue is no more res integra in view of a catena of decisions of apex Court (See State of Punjab v. Balbir Singh – [1994] 3 SCC 299; State of Punjab v. Baldev Singh – [1999] 6 SCC 172; C. Ali v. State of Kerala – [1999] 7 SCC 88; Kalayath Nasar v. State of Kerala – [1999] 7 SCC 309 and Babu v. State of Kerala – [1999] 8 SCC 499). 20. The learned Public Prosecutor appearing for the State has argued that in view of the factual position of this case it was not necessary to comply with the provisions of section 50 of the NDPS Act at all. It is argued that the Sub Inspector of Police, Parippally, who detected the offence, went to the place not to conduct any search of the person of the appellant or her shop, but to execute a warrant issued against one Vilasini by the Judicial First Class Magistrate, Paravoor. It is argued that the detection of the narcotic substance from the possession of the appellant-accused was a chance detection and the police party was not proceeding to the place on receipt of any prior intimation with regard to the appellant in this case. 21. It is argued that the detection of the narcotic substance from the possession of the appellant-accused was a chance detection and the police party was not proceeding to the place on receipt of any prior intimation with regard to the appellant in this case. 21. In Exhibit P1 mahazar itself it is stated that the police party headed by P.W.5 went to the spot to execute a Non Bailable Warrant issued against one Vilasini and while searching for Vilasini, they came near the shop of appellant. On seeing the police party, the appellant became nervous and that was the reason why P.W.5 questioned her with the help of P.W.3. In the mahazar itself P.W.5 had given the details of the case in which the Non Bailable Warrant was issued, the name of the person to be arrested, etc. Such statements were not challenged in the cross-examination at all. We do not find any reason to disbelieve the evidence of P.W.5, which was corroborated by the statement in Exhibit P1 mahazar to the effect that the police party came near the bunk shop owned by the appellant nor for conducting any search in her shop or the person of the appellant, but to arrest the accused in another case. The police party which was on an entirely different mission, had accidently stumbled upon the appellant. The ganja happened to be seized by mere chance. If the police party makes a search and arrest by chance it is not necessary to observe the provisions of Section 50 of the NDPS Act. 22. In State of Punjab v. Balbir Singh (AIR 1994 SCC 1872 = [1994] 3 SCC 299), the apex Court held as follows:- “If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr.P.C. and when such search is contemplated at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a change (of) recovery of any narcotic drug or psychotropic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act”. Subsequently, there were conflicting views regarding the evidentiary value of a seizure made in violation of Section 50 of the NDPS Act. That matter was finally settled by the apex court in the decision reported in State of Punjab v. Baldev Singh (AIR 1999 SC 2378). A constitution Bench of the apex Court in Baldev Singh’s case (supra) held as follows:- “On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted”. It was further held as follows:- “(1) That when an empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing; (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused.” 23. In Bharatbhai Bhagwanjibhai v. State of Gujarat ([2002] 8 SCC 327), the apex Court again considered the question of chance recovery. In the above stated case, the search of the accused person was conducted in the presence of panchas merely due to suspicious conduct of the accused who had started running on seeing the patrolling police party. In Bharatbhai Bhagwanjibhai v. State of Gujarat ([2002] 8 SCC 327), the apex Court again considered the question of chance recovery. In the above stated case, the search of the accused person was conducted in the presence of panchas merely due to suspicious conduct of the accused who had started running on seeing the patrolling police party. The police officer conducting the search had no personal knowledge or information of, or reason to believe about, the presence of the accused with the contraband item in the area concerned. The search led to the seizure of charas from the person of the accused. The search was not conducted in accordance with the provisions of Section 50 of the NDPS Act. The apex Court held that the search in such circumstances although culminating in recovery of charas from the accused’s person, will not attract Section 50 of the NDPS Act. 24. Thus, it is well settled position of law that the question of complying with Section 50 the NDPS Act will arise only if the empowered officer or a duly authorized officer is acting on prior information. 25. In Madan Lal v. State of H.P. ([2003] 7 SCC 465), it is held that Section 50 of the NDPS Act applies only in case of personal search of a person and it does not extend to search of a vehicle or a container or a bag or premises. The principle laid down in Madan Lal’s case (supra) was followed in Megh Singh v. State of Punjab (2004 SCC [Cri] 58). In State of H.P. v. Pawan Kumar (2005 [3] KLT 195 [SC]), a Bench of apex Court consisting of three Judges considered the question again. It was held as follows:- “An incriminating article can be kept concealed in the body or clothings or coverings in different manner or in the footwear. While making a search of such type of articles, which have been kept so concealed, it will certainly come within the ambit of the words “search of person”. One of the tests, which can be applied is, where in the process of search the human body comes into contact or shall have to be touched by the person carrying out the search, it will be search of a person. One of the tests, which can be applied is, where in the process of search the human body comes into contact or shall have to be touched by the person carrying out the search, it will be search of a person. Some indication of this is provided by sub-S.(4) of S.50 of the Act, which provides that no female shall be searched by anyone excepting a female. The legislature has consciously made this provision as while conducting search of a female, her body may come in contact or may need to be touched and, therefore, it should be done only by a female. In the case of a bag, briefcase or any such article or container, etc., they would not normally move along with the body of the human being unless some extra or special effort is made. Either they have to be carried in hand or hung on the shoulder or back or placed on the head. They can be easily and in no time placed away from the body of the carrier. In order to make a search of such type of objects, the body of the carrier will not come in contact of the person conducting the search. Such objects cannot be said to be inextricably connected with the person, namely, the body of the human being. In extricable means incapable of being disentangled or untied or forming a maze or tangle from which it is impossible to get free.” It was further held as follows:- “Having regard to the scheme and the language used a very strict view of S.50 of the Act was taken and it was held that failure to inform the person concerned of his right as emanating from sub-s.(1) of S.50 may render the recovery of the contraband suspect and sentence of an accused bad and unsustainable in law. As a corollary, there is no warrant or justification for giving an extended meaning to the word “person” occurring in the same provision so as to include even some bag, article or container or some other baggage being carried by him”. So, the legal position is clear. As a corollary, there is no warrant or justification for giving an extended meaning to the word “person” occurring in the same provision so as to include even some bag, article or container or some other baggage being carried by him”. So, the legal position is clear. The question of complying with the provisions of Section 50 of the NDPS Act will arise only in case of personal search of a person and not when search is conducted in the premises or when the search was conducted without any prior information on that act. 26. The evidence on record shows that P.W.5 and police party were not acting on prior intimation regarding possession of any narcotic drug by the appellant. P.W.5, by chance, met the appellant and because of her conduct, P.W.5 questioned her and she handed over the ganja. So, Section 50 of the NDPS Act has no application to the facts of the case. 27. The evidence adduced in this case shows that of the 18 packets seized 17 were kept beneath the tin sheet used as a roof of the shop. In Madan Lal case (supra), it was held that a bare reading of Section 50 of the NDPS Act shows that it applies in case of search of a person and does not to search of a premise. Hence it was not necessary to comply with the provisions of Section 50 of the NDPS Act so far as the seizure of 17 packets. With regard to the solitary packet, when P.W.5 questioned the appellant she voluntarily took out the same from the folds of cloth at groin area and handed over the same to P.W.5. Actually no search on the body of the appellant was conducted in this case. When one voluntarily hands over the contraband article on questioning, there is no question of any search of the person of the accused. Search involves an act of looking for or exploring to find out something that is concealed. In a case where the concealed substance is taken out and produced by the accused himself, there is no need for search. What remains to be done is only seizure. Search involves an act of looking for or exploring to find out something that is concealed. In a case where the concealed substance is taken out and produced by the accused himself, there is no need for search. What remains to be done is only seizure. In such cases also it is not necessary to comply with the provisions of Section 50 of the NDPS Act as the detecting officer does not get an opportunity to follow the same (See Maheswari v. Jaideep (2004 [3] KLT 88). 28. The evidence discussed above shows that it was not necessary to comply with the provisions of Section 50 of the NDPS Act in this case. Though no statutory duty was cast upon P.W.5 to follow the procedure prescribed under Section 50 of the NDPS Act, he had asked the appellant as to whether she requires the presence of a Gazetted Officer. The first question arising for consideration is whether telling a person that if he requires he will be searched in the presence of a Gazetted Officer or Magistrate is sufficient compliance of Section 50 of the NDPS Act. We have already extracted the relevant portion of the decision in Balbir Singh’s Case in which the apex Court had held that the accused should be informed of his right to be searched in the presence of a Magistrate or Gazetted Officer. The principle laid down Balbir Singh’s Case (supra) was approved by the Constitution Bench in Balbir Singh’s Case (supra) rendered on 21.7.1999. 29. In Joseph Fernandez v. State of Goa ([2000] 1 SCC 707 = AIR 2000 SC 3502), a Bench of apex Court consisting of three Judges had occasion to consider the manner in which the requirement under Section 50 of the NDPS Act is to be complied with. That decision was rendered on 5.10.1999. It was held as follows:- “Learned counsel tried to highlight a point that Section 50 of the Narcotic Drugs and Psychotropic Substances Act has not strictly been complied with by P.W.8, the officer who conducted the search. According to the learned counsel for the appellant the searching officer should have told the person who was subjected to search that he had a right to be searched in the presence of a gazetted officer or a Magistrate. According to the learned counsel for the appellant the searching officer should have told the person who was subjected to search that he had a right to be searched in the presence of a gazetted officer or a Magistrate. In this case P.W.8 has deposed that she told the appellant that if wished he could be searched in the presence of the gazetted officer or a Magistrate to which the appellant had not favourably reciprocated. According to us the said offer is a communication about the information that the appellant has a right to be searched so. It must be remembered that the searching officer had only Section 50 of the Act then in mind unaided by the interpretation placed on it by the Constitution Bench. Even then the searching officer informed him that “if you wish you may be searched in the presence of a gazetted officer or a Magistrate”. This according to us is in substantial compliance with the requirement of Section 50. We do not agree with the contention that there was non-compliance with the mandatory provision contained in Section 50 of the Act”. In K. Mohanan v. State of Kerala ([2000] 10 SCC 222) decided on 27.10.1999 by a Bench consisting of 2 Judges, it was held as follows:- “If the accused, who was subjected to search was merely asked whether he required to be searched in the presence of a gazetted officer or a Magistrate it cannot be treated as communicating to him that he had a right under law to be searched so. What PW1 has done in this case was to seek the opinion of the accused whether he wanted it or not. If he was told that he had a right under law to have it (sic himself) searched what would have been the answer given by the accused cannot be gauged by us at this distance of time. This is particularly so when the main defence adopted by the appellant at all stages was that Section 50 of the Act was not complied with”. As already noticed, the decision in Mohanan’s case (supra) was rendered by a Bench of two Judges without taking note of the decision of the Larger Bench in Joseph Fernandez’ case (supra). This is particularly so when the main defence adopted by the appellant at all stages was that Section 50 of the Act was not complied with”. As already noticed, the decision in Mohanan’s case (supra) was rendered by a Bench of two Judges without taking note of the decision of the Larger Bench in Joseph Fernandez’ case (supra). In Beckodan Abdul Rahiman v. State of Kerala ([2002] 4 SCC 229), decided on 16.4.2002, a Bench consisting of two Judges had held as follows:- “Similarly the provisions of Section 50 have not been complied with as the accused has not been given any option as to whether he wanted to be searched in the presence of a gazetted officer or the Magistrate. The compliance with Section 50 is held to have been fulfilled on his (PW1) asking the accused “whether I should search him in the presence of senior officers or a gazetted officer”. The accused was required to be apprised on his right conferred under Section 50 giving him the option to search being made in the presence of a gazetted officer or the Magistrate. The accused is not shown to have been apprised of his right nor any option offered to him for search being conducted in the presence of the Magistrate”. The question again came up for consideration in Prabha Shankar Dubey v. State of Madhya Pradesh (AIR 2004 SC 486 = 2004 SCC [Cri] 420). That decision was rendered on 2.12.2003 by a Bench consisting of two Judges. The decision of the apex Court in Mohanan’s case (supra) was not brought to the notice of the Court. In Prabha Shankar Dubey’s case (supra), the accused persons were stopped and apprised through notices Exhibits P10 and P11 that if they so desire can be taken to a Magistrate or a Gazetted Officer for search. The information was conveyed in the following manner:- “By way of this notice you are informed that we have received information that you are illegally carrying opium with you, therefore, we are required to search your scooter and you for this purpose. You would like to give me search or you would like to be searched by any Gazetted Officer or by a Magistrate”. You would like to give me search or you would like to be searched by any Gazetted Officer or by a Magistrate”. It was argued that there was no sufficient compliance of the requirements embodied in Section 50 of the NDPS Act and the principle laid down in Prabha Shankar Dubey’s case (supra) runs counter to the dictum laid down in Baldev Singh’s case (supra) by the Constitution Bench. It was contended that by merely asking the accused what is to be done is seeking their opinion and not making them aware of their right. It was also argued that in respect of penal statutes substantial compliance will not be sufficient. The Court considered the conclusion arrived at in Baldev Singh’s case and held as follows:- “7. It is not disputed that there is no specific form prescribed or intended for conveying the information required to be given under S.50. What is necessary is that the accused (suspect) should be made aware of the existence of his right to be searched in the presence of one of the officers named in the section itself. Since no specific mode or manner is prescribed or intended, the Court has to see the substance and not the form of intimation. Whether the requirements of S.50 have been met is a question which is to be decided on the facts of each case and there cannot be any sweeping generalization and/or strait-jacket formula. 8. Section 50 does not involve any self-incrimination. It is only a procedure required to protect the rights of an accused (suspect) being made aware of the existence of his right to be searched if so required by him before any of the specified officers. The object seems to be ensure that at a later stage the accused (suspect) does not take a plea that the articles were planted on him or that those were not recovered from him. To put it differently, fair play and transparency in the process of search has been given the primacy. xx xx xx 9. As has been highlighted in Baldev Singh’s case (supra) it has to be seen and gauzed whether the requirements of S.50 in reality provides for additional safeguards which are not specifically provided by the statute. The stress is on the adoption of a reasonable, fair and just procedure. xx xx xx 9. As has been highlighted in Baldev Singh’s case (supra) it has to be seen and gauzed whether the requirements of S.50 in reality provides for additional safeguards which are not specifically provided by the statute. The stress is on the adoption of a reasonable, fair and just procedure. No specific words are necessary to be used to convey existence of the right”. Thereafter the Court considered the principle laid down in Joseph Fernandez’ case (supra). It was held as follows:- “What the concerned officer is required to do is to convey about the choice the accused had. The accused (suspect) has to be told in a way that he becomes aware that the choice is his and not of the concerned officer, even though there is no specific form. The use of the word ‘right’ at relevant places in the decision of Baldev Singh’s case (supra) seems to be to lay effective emphasis that it is not by the grace of the officer the choice has to be given but more by way of a right in the ‘suspect’ at that stage to be given such a choice and the inevitable consequences that have to follow by transgressing it. The use of the expression ‘substantial compliance’ was made in the background that the searching officer had S.50 in mind and it was unaided by the interpretation placed on it by the Constitution Bench in Baldev Singh’s case (supra). A line or a word in a judgment cannot be read in isolation or as if interpreting a statutory provision, to impute a different meaning to the observations”. After elaborately considering the principles laid down in Baldev Singh’s case (supra), the Court relied on the decision reported in Joseph Fernandez’ case (supra). It was held that there was compliance of with the requirement of Section 50 of the NDPS Act. 30. In T.T. Haneefa v. State of Kerala (2004 SCC [Cri] 1550) also relying on the decision of the apex Court in Beckodan Abdul Rahiman’s case (supra), it was argued that there was violation of Section 50 of the NDPS Act. The apex Court rejected that contention. The relevant portion of the judgment reads as follows:- “We are unable to agree with the plea raised by the appellant. The apex Court rejected that contention. The relevant portion of the judgment reads as follows:- “We are unable to agree with the plea raised by the appellant. Ext.P-1, mahazar shows that before the search the appellant was asked whether he would like the presence of a Magistrate, he declined to avail that privilege and thereafter the search was conducted and drug was recovered from his possession”. So the legal position is very clear. In every case of personal search, the accused has got a right to insist that he shall be searched in the presence of higher officials like Gazetted Officer or Magistrate. The option is that of the accused. He may allow the empowered officer or authorized officer himself to conduct the search or insist that the search shall be conducted in the presence of a Gazetted Officer or Magistrate. If the authorized officer is proceeding to conduct a search of a person on getting prior information, the accused must be made aware that he has got a right to demand for the presence of a Gazetted Officer or Magistrate as of right and not by the grace of the officer as held in Joseph Fernandez’ case (supra) and Prabha Shankar Dubey’s case (supra). If the accused does not avail that option, no further duty is cast on the detecting officer or searching officer to conduct search in the presence of a Gazetted Officer or Magistrate. In the case at hand, the appellant was told about her right and she insisted that the search shall be conducted in the presence of a Gazetted Officer. So, even accepting the case of the appellant that the provisions of Section 50 of the Act are applicable to the facts of this case the provisions of Section 50 of the Act were complied with. 31. Now we shall consider the next limb of the argument raised by the counsel for the appellant. In this particular case, P.W.5 informed the appellant whether she would like to have the presence of a Gazetted Officer. She was not told about the option of gazetted officer or Magistrate. What exactly is the option available to the person to be searched? The learned counsel appearing for the appellant has argued that the accused has got an option to select either the Gazetted Officer or Magistrate. She was not told about the option of gazetted officer or Magistrate. What exactly is the option available to the person to be searched? The learned counsel appearing for the appellant has argued that the accused has got an option to select either the Gazetted Officer or Magistrate. He has relied on the decisions reported in Beckodan Abdul Rahiman v. State of Kerala ([2002] 4 SCC 229), Mohan Singh v. State of Punjab (2005 [2] KLT SN 41 (Case No.52), Prabha Sankar Dubey v. State of Madhya Pradesh (AIR 2004 SC 486), Jameela v. State of Kerala and another (2004 [1] KLJ [NOC] 1) and also a decision of the learned Single Judge of this Court in Crl.A.No.127 of 1999 (Mani v. State of Kerala) decided on 23.9.2000 in support of that argument. It was argued that it is not enough that the officer conducting the search inform the person to be searched that he has a right to insist for the presence to be searched that he has a right to insist for the presence of a Gazetted Officer, but he must be told that he has got an option to select between a Gazetted Officer or Magistrate. In Manohar Lal v. State of Rajasthan (AIR 1996 SC 2880 = 1996 [1] KLT SN 19 [Case No.24]) apex Court held that the accused need not be given a further option to choose between the Gazetted Officer or Magistrate. It was held as follows:- ‘It is clear from Section 50 of the N.D.P.S. Act that the option given thereby to the accused is only to choose whether he would like to be searched by the officer taking the search or in the presence of the nearest available Gazetted Officer or the nearest available Magistrate”. This principle was again reiterated in Raghbir Singh v. State of Haryana (AIR 1996 SC 2926). The dictum laid down in these decisions was explained in Krishna Kanwar v. State of Rajasthan (AIR 2004 SC 2735), Prabha Shanker Dubey v. State of Madhya Pradesh (AIR 2004 SC 486). T.T. Haneefa v. State of Kerala (2004 SCC [Cri] 1550) and finally in State of Rajasthan v. Ram Chandra (2005 [3] KLT 601 [SC]). In Ram Chandra’s case (supra), it was held as follows:- “It is not disputed that there is no specific form prescribed or intended for conveying the information required to be given under S.50. T.T. Haneefa v. State of Kerala (2004 SCC [Cri] 1550) and finally in State of Rajasthan v. Ram Chandra (2005 [3] KLT 601 [SC]). In Ram Chandra’s case (supra), it was held as follows:- “It is not disputed that there is no specific form prescribed or intended for conveying the information required to be given under S.50. What is necessary is that the accused (suspect) should be made aware of the existence of his right to be searched in the presence of one of the officers named in the Section itself. Since no specific mode or manner is prescribed or intended, the Court has to see the substance and not the form of intimation. Whether the requirements of S.50 have been met is a question which is to be decided on the facts of each case and there cannot be any sweeping generalization and/or strait-jacket formula. S.50 does not involve any self-incrimination. It is only a procedure required to protect the rights of an accused (suspect) being made aware of the existence of his right to be searched if so required by him before any of the specified officers. The object seems to be to ensure that at a later stage the accused (suspect) does not take a plea that the articles were planted on him or that those were not recovered from him. To put it differently, fair play and transparency in the process of search has been given the primacy”. After extracting the principles laid down in Manohar Lal’s case (supra) and Raghbir Singh’s case (supra), the apex Court concurred with the view taken in Manohar Lal’s case. It was further held as follows:- “If the person so requires, the officer referred to under sub-section (1) of S.50 may detain the person to bring him before the Gazetted Officer or the Magistrate, as the case may be. As was noticed in Raghbir Singh’s case (supra) the Act affords the person to be searched a safeguard to the effect that he may require the search to be conducted in the presence of a senior officer. The senior officer may be a Gazetted Officer or a Magistrate depending upon who is conveniently available. As was noticed in Raghbir Singh’s case (supra) the Act affords the person to be searched a safeguard to the effect that he may require the search to be conducted in the presence of a senior officer. The senior officer may be a Gazetted Officer or a Magistrate depending upon who is conveniently available. That being the purpose of the Act, if any Gazetted Officer even if he is a police officer of a particular rank is present nearby when the accused is detained, the accused may be asked as to whether he would like to be searched in the presence of that officer or a Magistrate”. Thus, in view of the principles laid down in the various decisions of the Supreme Court cited above, it is clear that the option available to a person to be searched is to insist that in addition to the officer searching him, there must be either a Magistrate or a Gazetted Officer. Even if the officer conducting the search fails to inform the person to be searched that he has got a right to require that he shall be searched in the presence of Magistrate, without mentioning the other, there is substantial compliance. If the officer tells the person to be searched that if he requires, he will be searched in the presence of a Gazetted Officer or Magistrate and even if the suspect insists for the presence of Magistrate alone, there is sufficient compliance if the search is conducted in the presence of a Gazetted Officer. That position was considered by this Court in a number of decisions (See Abdul Azeez v. State of Kerala (2001 [1] KLT 805), Abdulla v. State of Kerala (2001 [1] KLT 224), Dainel v. State of Kerala (2002 [1] KLT 593, Palayan v. State of Kerala (2002 [1] KLT 874), Salahuddin v. State of Kerala (2003 [3] KLT 62) and Babu v. State of Kerala (2002 [2] KLJ 329). 32. The view taken by a learned Single Judge in Crl.A.127 of 1999 (Mani v. State of Kerala) was considered by a Division Bench of this Court, to which one of us was a party (Padmanabhan Nair, J.), which was reported in Marakkar v. State of Kerala (2001 [3] KLT 539). 32. The view taken by a learned Single Judge in Crl.A.127 of 1999 (Mani v. State of Kerala) was considered by a Division Bench of this Court, to which one of us was a party (Padmanabhan Nair, J.), which was reported in Marakkar v. State of Kerala (2001 [3] KLT 539). After considering the various decisions on the point, the Division Bench overruled the decision in Mani v. State of Kerala (Crl.A.127 of 1999) and held that the failure to inform the person that he has an option to be searched in the presence of a Magistrate or a Gazetted Officer is not fatal. It was further held that if the officer conducting the search informs the accused of his right to be searched in the presence of any one of them, there is substantial compliance. The principle laid down in Rasheed v. State of Kerala (1999 [3] KLT 133) and in Hamza v. State of Kerala (II [2000] CCR 425) was confirmed. We do not find any reason to take a view different from the one taken by the Bench in Marakkar’s case (supra). We follow the same. The failure on the part of the officer to inform the accused about his option to be searched in the presence of either of categories of officers (Gazetted Officer or Magistrate) is not fatal. If the officer conducting the search informs the accused of his right to be searched in the presence of a Gazetted Officer or Magistrate alone, there is substantial compliance. The real right of the accused under Section 50 of the NDPS Act is not an option between the Gazetted Officer and the Magistrate but an option to have his body searched by the empowered or authorized officer either in the presence of a Gazetted Officer or Magistrate or in the absence of the Gazetted officer or Magistrate. Therefore, if in a given case the accused is only asked whether he would like to have his body searched in the presence of a Magistrate and the option of having his body searched in the presence of a Gazetted officer is not put to him, it cannot be said that there is only partial compliance of Section 50. Therefore, if in a given case the accused is only asked whether he would like to have his body searched in the presence of a Magistrate and the option of having his body searched in the presence of a Gazetted officer is not put to him, it cannot be said that there is only partial compliance of Section 50. There is no likelihood of any prejudice to the accused because of non-mentioning of his right to insist for either of the two category of officers under Section 50 of the NDPS Act. If the accused is able to plead and prove mala fide, the Court can consider that aspect and appropriate decision taken. 33. The appellant was specifically questioned about the option given to her regarding her right under Section 50 of the NDPS Act while she was questioned under Section 313 of the Code of Criminal Procedure. She answered that the evidence of P.W.5 that she was informed of her right was false. She had not stated that she was unaware of her right under Section 50 of the NDPS Act or that she was misled on that account. She exercised her option and she was searched in the presence of a Tahsildar. In Prabha Shanker Dubey’s case (supra), the apex Court has held that though the failure on the part of the accused at the time of questioning under Section 313 of the Code of Criminal Procedure to state that he was unaware of his right or that he was misled by itself is not sufficient to convict the accused in view of the procedural safeguard required to be observed by compliance with requirements of Section 50 of the NDPS Act, yet that is of some relevance in appreciating the grievance that there was violation of Section 50 of the NDPS Act. 34. The learned Public Prosecutor has argued that Tahsildars of the State are conferred with the powers of the Executive Magistrate as such P.W.2 is a Gazetted Officer as well as a Magistrate also. In the absence of any evidence regarding conferment of Magisterial powers on the Tahsildar, we are not considering whether a Tahsildar is an Executive Magistrate also in this case. That question is left open to be decided in appropriate proceedings. (B) Section 55 of the NDPS Act 35. In the absence of any evidence regarding conferment of Magisterial powers on the Tahsildar, we are not considering whether a Tahsildar is an Executive Magistrate also in this case. That question is left open to be decided in appropriate proceedings. (B) Section 55 of the NDPS Act 35. The learned counsel appearing for the appellant relying on the decision of a learned Single Judge reported in Euler Waldemar v. State of Kerala (2004 [2] KLT 1072) has argued that the evidence in this case shows that the officer who conducted the search did not affix his personal seal, but used a 10 paise coin to seal the sample packet as well as the packet containing the balance ganja. It is argued that it violates the mandatory provisions contained in Section 55 of the Act. In Balbir Singh’s case (supra), it was held that the provisions contained in Section 55 of the NDPS Act is not mandatory. Further, Section 55 provides that the officer in charge of the police station shall take charge of the articles seized and delivered to him. Section 55 reads as follows:- “S.55. Police to take charge of articles seized and delivered.- An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within he local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or whom may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them ad all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station”. So, Section 55 confers a power on the officer who seized any contraband article and produced before the officer in charge of a Police Station for keeping the same in safe custody to take a sample from such articles produced before the officer in charge of the station. At that point of time, he may affix his seal in the articles delivered to the Station House Officer. Section 55 further provides that the Station House Officer shall affix the seal in the sample, if any, taken by the officer who produced the same before him. At that point of time, he may affix his seal in the articles delivered to the Station House Officer. Section 55 further provides that the Station House Officer shall affix the seal in the sample, if any, taken by the officer who produced the same before him. It does not provide that the authorized officer or empowered officer who takes a sample to be sent to the Chemical Examiner’s Laboratory for test should affix his personal seal on the sample so taken at the time of seizure. Further, Section 55 does not provide that the sample must be taken only after producing the articles before the officer in charge of the police station. In fact it is insisted that in every case the accused along with the samples should be taken to the police station for taking sample to be sent to Chemical Examiner’s Laboratory, that will cause violence to the provisions of Section 55 of the Act. Section 55 does not apply to the taking of sample by the empowered officer or authorized officer at the time of seizure for the purpose of forwarding the same for analysis. In Suresh v. State (1995 [1] KLT 636) it was held that when sample is taken at the police station, the seal of the officer in charge should be affixed in the sample. In case the sample is taken and seal affixed by the investigating officer before the article is delivered to the Police Station, the question of affixing the seal of the officer in charge of the police station does not arise. 36. A combined reading of Section 52(3) and Section 55 of the NDPS Act makes it clear that what is strictly required is that when any police officer, below the officer-in-charge of police station apprehends a person suspected to be in possession of narcotic drug or other psychotropic substances he has to take charge of that person, detain him, conduct his search. If any contraband article is found in the person of the accused, the officer has to arrest him and produce such person with the contraband articles seized before the officer-in-charge of the nearest police station. If any contraband article is found in the person of the accused, the officer has to arrest him and produce such person with the contraband articles seized before the officer-in-charge of the nearest police station. The officer in charge of the police station shall take charge of the articles seized, keep them in safe custody and may allow any person who accompanies such seized articles to the police station to affix his seal on the articles or sample thereof. The officer in charge of the police station shall affix his seal also in such packets. In Karnail Singh v. State of Rajasthan ([2000] 7 SCC 632), the apex Court had considered the scope of Section 55 of the NDPS Act. It was held as follows:- “With the application of Section 51 read with Sections 52 and 53 of the Act, the officer required to affix the seal etc., under Section 55 of the Act, would be “the officer in charge of the nearest police station” as distinguishable from an officer in charge of a police station empowered under Section 53 of the Act. If resort is had to the procedure prescribed under sub-section (3)(a) of Section 52, the applicability of Section 55 of the Act would be attracted but if the arrested person and the seized articles are forwarded under clause (b) of sub-section (3) of Section 52 of the Act to the officer empowered under Section 53 of the Act, the compliance of Section 55 cannot be insisted upon. The distinction between the officer in charge of the nearest police station and the officer empowered under Section 53 of the Act is distinct and clear. The distinction is apparently based upon a reasonable object …..” So, the principle laid down in Euler Waldemar’s case (supra) that the investigating officer seizing the contraband article shall affix his personal seal at the time of search and seizure does not lay down the correct law. We overrule the same. We hold that the provisions contained in Section 55 of the Act have no application when an authorized officer or empowered officer takes sample from the contraband articles before the same is delivered to the Police Station. (C) Section 57 of the NDPS Act and Section 58 of the Code of Criminal Procedure. 37. We overrule the same. We hold that the provisions contained in Section 55 of the Act have no application when an authorized officer or empowered officer takes sample from the contraband articles before the same is delivered to the Police Station. (C) Section 57 of the NDPS Act and Section 58 of the Code of Criminal Procedure. 37. It is argued that there is violation of the provisions contained in Section 58 of the Code of Criminal Procedure and the same vitiates the trial. The learned counsel for the appellant relied on Euler Waldemar’s case (supra) in support of this argument. Section 58 of the Code of Criminal Procedure reads as follows:- “58. Police to report apprehensions.- Officers in charge of police stations shall report to the district Magistrate, or, if he so directs, to the Sub-divisional Magistrate, the cases of all persons arrested without warrant, within the limits of their respective stations, whether such persons have been admitted to bail or otherwise”. 38. The learned Public Prosecutor has argued that Section 58 of the Code of Criminal Procedure has no application in the case of arrest and detention under the NDPS Act and it is inconsistent with the other provisions of the Act. 39. Section 51 of the NDPS Act reads as follows:- “S.51. Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures.- The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act.” In Baldev Singh’s case (supra), it was held as follows:- “Vide Section 51, the provisions of the Code of Criminal Procedure, 1973, shall apply, insofar as they are not inconsistent with the provisions of the NDPS Act, to all warrants issued and arrests, searches and seizure made under the NDPS Act. Thus, the NDPS Act, 1985 after incorporating the broad principles regarding search, seizure and arrest etc. in Sections 41, 42, 43, 49 and 50 has laid down in Section 51 that the provisions of the Code of Criminal Procedure shall apply insofar as they are not inconsistent with the provisions of he NDPS act. Thus, the NDPS Act, 1985 after incorporating the broad principles regarding search, seizure and arrest etc. in Sections 41, 42, 43, 49 and 50 has laid down in Section 51 that the provisions of the Code of Criminal Procedure shall apply insofar as they are not inconsistent with the provisions of he NDPS act. The expression “insofar as they are not inconsistent with the provisions of this Act” occurring in Section 51 of the NDPS Act is of significance. This expression implies that the provisions of the Code of Criminal Procedure relating to search, seizure or arrest apply to search, seizure and arrest under NDPS Act also except to the extent they are “inconsistent with the provisions of the Act”.” Section 52 of the NDPS Act deals with disposal of persons arrested and articles seized. Section 57 of the NDPS Act deals with report of arrest. Section 57 reads as follows:- “S.57. Report of arrest and seizure. Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior”. A reading of Section 58 of the Code of criminal Procedure shows that the duty to forward the report is cast on the officer in charge of the police station and not on the empowered or authorized officer who arrest the accused. Of course, in some cases the empowered officer may be the officer in charge of the police station also. Section 57 of the act provides that the officer who makes any arrest or seizure shall report the matter to his immediate superior official. So, under the Act there is specific provision for forwarding a report to the official superior. In the case at hand, P.W.5 forwarded a report to P.W.8 who was his immediate official superior. After seizure of the ganja and arrest of the accused, the C.D. file itself was forwarded to P.W.8. Further investigation of he case was conducted by P.W.8. So, there was substantial compliance of the provisions of section 57 of the Act. 40. A reading of Section 58 of the Code of Criminal Procedure shows that provisions of that section are not consistent with Section 57 of the NDPS Act. Further investigation of he case was conducted by P.W.8. So, there was substantial compliance of the provisions of section 57 of the Act. 40. A reading of Section 58 of the Code of Criminal Procedure shows that provisions of that section are not consistent with Section 57 of the NDPS Act. No statutory duty is cast on the officer effecting arrest or seizure to send any report to the district Magistrate. The observations contained in Euler Waldemar’s case (supra) to the contrary are not correct. We hold that when an arrest is made under the provisions of the Act, the officer making the arrest is not bound to send any report to the district Magistrate as provided under Section 58 of the Code of Criminal Procedure. Even if the station House Officer fails to send any report, the same will not make the search and seizure illegal or vitiates the trial. Conclusion And Sentence 41. The evidence discussed above shows that in this case the search and seizure was effected in accordance with law from the appellant and hence the finding of the Court below that she is guilty of the offence is correct and does not call for any interference. 42. Now we shall consider the question of sentence to be imposed on the appellant. When the appellant was heard about the question of sentence she had stated that her husband died about 12 years prior to the date of questioning and she is having three daughters and there is nobody to lookafter them. She was aged about 49 on the date of seizure. The seizure was effected in 1997. So, now she must be aged about 58 years. The records show that at the time of seizure itself she was arrested and she was subsequently released on bail on 2.5.1997. She was convicted on 21.7.2000 and she was undergoing imprisonment. Though the appeal was filed on 8.8.2000 and a petition to suspend the execution of sentence was also filed, no orders were passed on that application. Thereafter she filed Crl.M.P.No.42 of 2001 for suspending the sentence on 2.1.2001. That petition was allowed on 4.1.2001. So, from 21.7.2000 till the date on which she was released on the basis of the order dated 4.1.2001 she was in jail. The appellant is entitled to get set off of the period of pre-trial detention. Thereafter she filed Crl.M.P.No.42 of 2001 for suspending the sentence on 2.1.2001. That petition was allowed on 4.1.2001. So, from 21.7.2000 till the date on which she was released on the basis of the order dated 4.1.2001 she was in jail. The appellant is entitled to get set off of the period of pre-trial detention. So, she actually underwent imprisonment for more than five and a half months. The quantity seized was only 25 grams of ganja. The learned counsel appearing for the appellant has argued that in view of he amendment of Section 20(b)(i) of the NDPS Act at present the quantity seized is only “small quantity”, and after the amendment the offence is a bailable one and the maximum sentence that can be awarded is only imprisonment for six months. In view of Section 41 of the Amending Act, the appellate Court cannot set aside the punishment imposed by the trial court and convict the appellant under the provisions of the amended section. But, considering the fact that the appellant is a widow aged about 58 years and mother of three grown up daughters, we are of the view that the substantive sentence already suffered is sufficient to meet the ends of justice. So, we limit the substantive sentence to the sentence already suffered. 43. The learned Sessions Judge has imposed a fine of Rs.15,000/=. Considering the entire facts sand circumstances of the case, we are of the view that an amount of Rs.2,000/= (Rupees two thousand only) is sufficient. So, we reduce the sentence of fine from Rs.15,000/= to Rs.2,000/=. The default sentence is also reduced to simple Imprisonment for 15 days. In he result, the appeal is partly allowed. The finding of the court below that the appellant is guilty of the offence under Section 20(b)(i) of the NDPS Act is confirmed. But, the sentence imposed is modified and altered as follows: The substantive sentence is limited to the period of the appellant had already suffered in this case. The fine imposed is modified and reduced to Rs.2,000/= (Rupees two thousand only). In default of payment of fine, the appellant shall undergo simple Imprisonment for 15 days.