Judgment :- The accused in C.C.No.42/2003 on the file of the Special Court for E.C. & NDPS Act, who suffered a conviction, followed by sentence, is the appellant. 2. The facts leading to conviction in brief as follows: (a) Thiru S.R. Prabhakaran (P.W.1) was working as Superintendent, Customs Preventive Unit, Salem on 20.10.2002. On that date, at about 4.00 p.m. or so, he received an information from the informer, as if Ganja is stored in a place at Erode and if P.W.1 meets the informer on the same day, he would identify the person concerned, by name Sattar, as well as the place concerned also, where the Ganja is stored. (b) In response to the information, reducing the same into writing, P.W.1 who is authorised by the Government to search and seize the contrabands, after informing to the Superior Officers went to Erode along with the Inspector Radhakrishnan and others, met the informer, then on his identification of the place, they were watching Door No.41, Subbaiah Street, Karungalpalayam. Then on 21.10.2003 at about 7.30 a.m., P.W.1 requested Muthusamy (P.W.2) and one Karuppanna Gounder, independent witnesses, for the search conducted, for which they have agreed ascertaining the identity of P.W.1, as well as understanding their role. (c) On 21.10.2002, at about 7.30 a.m. or so, P.W.1, P.W.2 and others entered into the premises bearing Door No.41, Subbaiah Street, Karungalpalayam, where they had noticed the presence of the accused in a room. Informing about their visit, when P.W.1 searched the premises in the presence of others, he had noticed three polythene bags, each containing 20, 18, 13 kgs of Ganja, weighing totally 51 kgs worth about Rs.1,02,000/-. (d) As per the procedure contemplated, P.W.1 took samples also from the three bags in the presence of the accused, as well as in the presence of other witnesses, then recovered the Ganja bags also, for which Ex.P.4 mahazar was prepared, in which P.Ws.1 & 2 and others had signed. Seizure of the contrabands, as well as taking of the samples came to an end by 10.30 a.m. on the same day. (e) The accused, upon examination by P.W.1, confessed the possession of Ganja, as well as the offence, which was reduced into writing under Ex.P.5, in which P.W.1 had signed. Thereafter, informing the accused for what purpose, he was taken into custody, he was arrested by P.W.1, for which Ex.P.7 was prepared. (e) The accused, upon examination by P.W.1, confessed the possession of Ganja, as well as the offence, which was reduced into writing under Ex.P.5, in which P.W.1 had signed. Thereafter, informing the accused for what purpose, he was taken into custody, he was arrested by P.W.1, for which Ex.P.7 was prepared. Thereafter, the contrabands and the accused were taken to the police station and the accused was remanded to judicial custody. (f) In order to ascertain, whether the materials seized from the possession of the accused comes within the meaning of 'Narcotic Drug', the samples taken from the three bags were sent for chemical analysis, which was done by P.W.3, disclosing or revealing that the materials recovered from the accused are nothing but Ganja and the same was informed to the investigating officer under Ex.P.12. Thus, P.W.1, prima facie, satisfied that the accused was in possession of 51 Kgs of Ganja, for which he has no legal explanation and in this view, he should be dealt with under Sections 8(c) r/w 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter called 'the Act'). On the basis of the investigation, a final report came to be filed before the concerned Court. (g) The learned Special Judge taking the case on file as C.C.No.42/2003, following the procedure contemplated for the trial, framed charges against the accused under Section 8(c) r/w 20(b)(ii)(C) of the Act, which was not accepted by the accused in the sense, pleading not guilty, when it was read over and explained to him, thereby compelling the prosecution to make out a case for conviction. (h) The respondent/prosecuting agency, in order to discharge the burden of proof, had examined three witnesses seeking aid from 15 documents and five material objects. Scanning of the above materials, coupled with the provisions of law, brought to surface, according to the best judgment of the learned trial Judge, the offences reported against the petitioner and in this view, he found guilty, convicting the accused appellant, sentencing him to undergo R.I for ten years and to pay a fine of Rs.1,00,000/-, in default to undergo R.I. for two years, which is under challenge in this appeal. 3. Heard the learned counsel for the appellant, Mr. A.K. Kumaraswamy and the learned counsel for the respondent, Mr. P.N. Prakash. 4. 3. Heard the learned counsel for the appellant, Mr. A.K. Kumaraswamy and the learned counsel for the respondent, Mr. P.N. Prakash. 4. The learned counsel for the appellant attempted to assail the conviction on the following grounds: (i) that the mandatory provisions of the Act, viz., Section 42 (i) of the Act is not at all followed in this case, thereby showing violation of the mandatory provision; (ii) that the prosecution has miserably failed to prove that the alleged contraband viz., Ganja was in the custody of the accused, by proving that the accused was residing in the said premises by examining the owner of the property and that since the possession viz., conscious possession of the accused as contemplated under the Act has not been made out, it should be held, the offence was not proved beyond all reasonable doubt; and (iii) that the confession statement said to have been recorded by the respondent police is not a genuine one, whereas the said document should have been prepared by obtaining signatures of the accused in the blank paper, in which the alleged confession might have been written later on, as if it is given by the accused. 5. Urging the above points mainly, adding some points then and there, taking me through the provisions of the law, seeking aid from a Supreme Court ruling also, the learned counsel for the appellant submitted that the conviction slapped upon the accused is legally unsustainable and in this view, at least giving the benefits of doubt, the accused is entitled to an acquittal. In order to create suspicion or to draw the benefits of doubt, thereby to come out from the clutches of the law, two grounds are mainly relied upon and they are: the information said to have been received and recorded by P.W.1 was not produced into Court, thereby showing violation of Section 42(1) of the Act also and that the Mahazar itself by its intrinsic evidence would indicate, that the contraband was not seized or recovered from the accused, as reported in the final report. 6. 6. The learned Special Public Prosecutor, countering the above submission would contend, that considering the status of P.W.1 viz., he is a Gazetted Officer, Section 42(1) of the Act is not at all applicable and in this view, he comes only under Section 41(2) of the Act, which should follow, he is not bound by Section 42(1) or 42(2) of the Act, seeking aid from a number of rulings also, in addition to explaining the wordings available in both the sections. It is also further submitted that in this case, by adducing satisfactory evidence, possession of Ganja with the accused was proved beyond all reasonable doubt, thereby the presumption is also available in favour of the prosecution under Section 54 of the Act, which is sufficient to prove the guilt of the accused. Further to strengthen the conviction, it was urged that the confession statement given to P.W.1, in this case, is well admissible in evidence, since he is not a police officer, wherein the accused had admitted about his involvement in the offence and therefore, the conviction slapped upon the accused by the trial Court, followed by imposing the minimum sentence contemplated, are all require affirmation and confirmation, not any disturbance, as claimed by the appellant. 7. After hearing the elaborate arguments of either counsel, I have given my anxious thought, assessing the materials and applying the legal principles as available in the Sections as well as as declared by this Court and the Apex Court, prompts me to say unhesitatingly, that there is no irregularity or infirmity in the conviction slapped by the trial Court upon the accused, for which the reasons are assigned as under. 8. The penal provisions of the NDPS Act are so stringent, aiming to save the society, curbing the illicit trafficking of narcotic drug and psychotropic substances and that is why more or less, in all the provisions, where the commercial quantity is involved, minimum punishment of not less than 10 years is contemplated, extending to 20 years, as well minimum fine of Rs.1 lakh extending upto Rs.2 lakhs. If this kind of sentences are to be slapped upon a person charged under this Act, the standard of proof required also must be stringent, not shadowed by any doubt. If this kind of sentences are to be slapped upon a person charged under this Act, the standard of proof required also must be stringent, not shadowed by any doubt. To secure this object, the legislatures have made check and balance then and there not only against the prosecuting agency, but also against the accused, probably to avoid foisting false cases, thereby making an innocent person to suffer unnecessarily. In this view, whenever an occasion had arisen, the courts of this land had held that the mandatory provision should be strictly complied with and failure of the same will lead to an acquittal. On this basis alone, the learned counsel for the appellant contended, that the procedures contemplated under Section 42 of the Act has not been complied with and in this view, as held by the Apex Court in State of West Bengal & Others v. Babu Chakraborty (2004 4 LW (Crl.) 758), the accused is entitled to an acquittal. 9. Before going into the dictum declared by the Apex Court in the above ruling, Section 42 should be remembered, since violation of this Section alone was urged. Section 42 gives power of entry, search, seizure and arrest without warrant or authorisation, to the officer concerned, which says: "..... 9. Before going into the dictum declared by the Apex Court in the above ruling, Section 42 should be remembered, since violation of this Section alone was urged. Section 42 gives power of entry, search, seizure and arrest without warrant or authorisation, to the officer concerned, which says: "..... if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset....', thereby showing, if the person, who had searched the premises and seized the contraband comes within the circle of Section 42, he should take down in writing the information given by any person and that information as contemplated under Section 42(2) of the Act should be sent to the immediate official superior within 72 hours and the same should be made available to the Court also, when the case was tried, in order to show that Section 42 is complied with. There is no quarrel that the procedures contemplated in Section 42 of the Act are mandatory in nature. It is also declared by the Apex Court in the ruling quoted above, that the non compliance of the provision would render the entire prosecution case suspect and cause prejudice to the accused and in the words of the Supreme Court's Judgment, it reads: "Great significance has been attached to the mandatory nature of the provisions, keeping in mind the stringent punishment prescribed in the Act. This Court has attached great importance to the recording of the information and the ground of belief since that would be the earliest version that will be available to a Court of law and the accused while defending his prosecution. This Court also held that failure to comply with Section 42(1), proviso to Section 42(1) and Section 42(2) would render the entire prosecution case suspect and cause prejudice to the accused." 10. This Court also held that failure to comply with Section 42(1), proviso to Section 42(1) and Section 42(2) would render the entire prosecution case suspect and cause prejudice to the accused." 10. P.W.1 admits that he had received the information from an informer, whose identity need not be disclosed as protected under Section 68 of the Act. It is the further case of P.W.1 that Ex.P.3 is the information received by him from the informer, which was reduced into writing. Ex.P.15 is said to be the original of Ex.P.3. As seen from these two documents, one cannot say that this is the original information recorded by P.W.1, as furnished by the informant and in fact those document says: 'Information Report' followed by another caption 'Gist of Information Recorded', thereby prima facie indicating that these two documents are not the original information taken down by P.W.1 as contemplated under Section 42(1) of the Act. Therefore, the learned counsel for the appellant urged since the original information which ought to have been reduced into writing by P.W.1 is not at all produced in this case and it is a violation of the Act, entitling the accused to come out from the clutches of the law, for breaching the mandatory provisions by P.W.1. 11. As an answer to this submission, the learned Special Public Prosecutor would contend, that Section 42(1) of the Act is not at all applicable to P.W.1, though he had stated that he had taken down the information and sent it to the immediate official superior as contemplated under Section 42(2) of the Act. He further submitted that the proper provision applicable to P.W.1 is Section 41(1) of the Act, where there is no mandate to take down in writing the information given by the informer, which should follow, there is no obligation also on the part of such an officer to send the information taken down in writing to his immediate official superior, seeking aid from various decisions, which I will quote infra after discussing Section 41 of the Act. 12. 12. Section 41(2) of the Act reads: "Any such officer or Gazette rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the para-military forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place whether by day or by night; or himself arrest such a person or search a building, conveyance or place." Further, sub Section 3 of Section 41 of the Act also empowers the officer, who comes under Section 41 of the Act to exercise all the powers of an officer acting under Section 42 of the Act, thereby informing that an officer of gazetted rank of the departments mentioned therein are competent to enter into any premises, search, and arrest the person without warrant or authorisation. In Section 41(2) of the Act, while dealing with the information given by any person, it is stated "taken in writing...", and "not taken down in writing", thereby showing it is not mandatory on the part of the officer coming under Section 41(2) that he should take down in writing, as specifically stated in Section 42(1) which says, "taken down in writing". When the officer has taken down in writing the information given by informer, there is an obligation on his part to send it to the immediate official superior within 72 hours, as mandated under Section 42(2), which is absent in Section 41 of the Act. Therefore, as rightly submitted by the learned Special Public Prosecutor, it is neither mandatory for the officer, who comes under Section 41(2) of the Act to reduce the information in writing nor mandatory to send the same to the immediate official superior within 72 hours, which would further indicate the faith deposed by the legislature in the officers of the gazetted rank, who are empowered to act under Section 41(2) of the Act. Therefore, the provisions intended to other officers as described under Section 42 of the Act cannot be extended to the officers coming under Section 41(2) of the Act, being the officer of gazetted rank of the department concerned. Admittedly, P.W.1 being the Superintendent of Customs is a gazetted officer, empowered under the Act, and therefore, assuming that he has failed to reduce the information in writing and failed to send the same to the immediate official superior, it will not vitiate the entire proceedings, making it null and void, as if mandatory provisions are violated, as claimed by the learned counsel for the appellant. This conclusion is supported by the rulings of this Court, as well as the rulings of the Apex Court and they are below: 13. In Sheik and others vs. State of Intelligence Officer (2002 MLJ (Crl.) 486), this Court had an occasion to consider the scope of Section 41 as well as Section 42 of the Act and the responsibility of the officers coming under those two sections, wherein it is held as follows: "Sub-section (2) to Section 41 of the Act specifically deals with the powers of the Gazette Officer with regard to the search and seizure whereas Section 42(1) of the Act deals with the powers of an officer, who is other than the Gazette Officer as is empowered by the Central Government or the State Government as the case may be. In this case, as P.W.8 is the Gazetted Officer, he acted only under Section 41(2) and not under Section 42(1) of the Act. In this case, as P.W.8 is the Gazetted Officer, he acted only under Section 41(2) and not under Section 42(1) of the Act. Therefore, the contention that PW8 did not reduce into writing the information received by him and it vitiates the trial, has to be rejected, since PW8 acted not under Section 42(1), but under Section 41(2) of the Act, and it is accordingly, rejected.", which principle is squarely applicable to the case on hand, since the position of P.W.1, as gazetted officer, who is empowered, as per the notification also, is not challenged. 14. The same question arose before this Court in Prabhulal vs. Assistant Director, Directorate of Revenue Intelligence, Trichy (2002 MLJ (Crl) 1020) along with the other connected appeals. This Court considering the status of the officer concerned, who seized the contraband and searched the premises, placing reliance upon the Judgment of this Court in Sheik's case referred supra, has concluded, that if the searching officer is the gazetted officer, only Section 41(2) of the Act gets attracted and in that case, question of reporting violation of Section 42 of the Act may not arise. The decision of this Court in the above said ruling was challenged before the Apex Court in Crl.A.No.486/2003 which is reported in 2003 AIR SCW 4975. The Apex Court not only considering the language used in Sections 41 & 42 of the Act, but also considering the ingredients stated in Section 43, has come to the conclusion, that Sections 42 & 43 of the Act do not require an officer to be gazetted officer, whereas Section 41(2) requires an officer to be so. Thus, taking the view, while confirming the decision of this Court, it is held, "The High Court is, thus, right in coming to the conclusion that since the Gazette Officer himself conducted the search, arrested the accused and seized the contraband, he was acting under Section 41 and, therefore, it was not necessary to comply with Section 42." thereby repelling the contentions of the appellant/accused therein that there is no violation, for the non compliance of Section 42(2), thereby confirmed the decision of this Court, which principle is applicable to the case on hand, by all force, applying the admitted facts also. For the foregoing reasons, I have no hesitation to reject the submission of the learned counsel for the appellant, that there is violation of Section 42 of the Act, since P.W.1 is not bound by Section 42, whereas he is bound only by Section 41(2). No violation of this Section is reported, in order to vitiate the proceedings. In this view, the first point urged, for assailing the conviction is rejected as unacceptable. 15. Ex.P.4 is the mahazar prepared by P.W.1 in the presence of P.W.2, under which it is said, Ganja was recovered or seized from a room, which was in the possession of the accused. The place of search is mentioned as 41, Subbaiah Street, Karungalpalayam, Erode – a room. It is the case of the prosecution that the accused was seen in the said room along with three bags of Ganja, which weighed totally 51 kgs. It is not recovered from the person. To prove that the accused had any interest in the room, either as owner or as tenant, no material has been placed. Further, the owner of the building also has not been examined in this case, to prove that the room, where the Ganja was recovered, let in to the accused on rental basis. In this view, taking advantage of these facts, a submission was made by the learned counsel for the appellant, that assuming that the recovery was made from the above said premises, possession cannot be attributed to the accused, that too, a conscious possession, which should follow, Section 8(c) of the Act cannot be attracted. In my considered opinion, when it is made out that the accused was seen in a closed room, along with three packets of Ganja, in the absence of any other person in the room sharing, it may not be necessary, to examine the owner of the building, to show that the accused was there as tenant or he was occupying the premises under permission etc. The Act does not say, that the contraband should be seized from a premises, which was in the legal possession of an accused or a person, whereas it says possession must be with the accused. The Act does not say, that the contraband should be seized from a premises, which was in the legal possession of an accused or a person, whereas it says possession must be with the accused. Therefore, even in the absence of legal ownership of a premises, if a person, was found in a room, it could be said, he can possess the property available therein, if it is not shared by anybody, or unless it is shown, that some one is the owner of that property. He cannot generally disassociate himself from the materials available in the room sitting there, claiming he has nothing to do with the property, in this case 'Ganja'. That is why the burden of proof also cast upon the accused, as contemplated under Section 54 of the Act, which says, a presumption shall be drawn, for the possession, if the person fails to account satisfactorily. In this view, if the accused has taken a stand that he was not in the room, or if the prosecution has failed to prove that the accused was in the room, then only the possession can be disassociated, otherwise, it should be associated with the person, who was found in the room. As spoken by P.Ws.1 & 2, they have seen the accused in the room, along with three bags of Ganja, which was based on the information furnished on the previous day. Therefore, I conclude that the accused was found to be in possession of 51 kgs of Ganja in the premises mentioned and therefore, there is no escape for him from the offence reported under Section 8(c) of the Act, which says no person shall possess any narcotic drug or psychotropic substance without any license or permit or authorization, for which punishment is contemplated under Section 20(b)(ii)(C) of the Act. 16. An attempt was made by the learned counsel for the appellant to doubt about the seizure, for which reliance is based upon Ex.P.4. It is the case of the prosecution that on 21.10.2002 at about 8.00 a.m, the premises was searched and Ganja was seized from the possession of the accused in his presence and in the presence of P.W.2 also. It is the case of the prosecution that on 21.10.2002 at about 8.00 a.m, the premises was searched and Ganja was seized from the possession of the accused in his presence and in the presence of P.W.2 also. It is the further case of the prosecution that after the seizure and preparation of the mahazar were over at about 10.30 a.m., the accused had given a confession statement viz., Ex.P.5, which is also admissible and can be the basis of conviction, provided it is proved as one voluntarily made. In Ex.P4, there are certain corrections. The material portion of the first line reads, that the entry, seizure and other proceedings had taken place on 21.10.2002. But when the time factor comes, it was originally stated as 2.00 a.m. early morning. Later, it is corrected as 8.00 a.m. In the same manner, where ever the word "mjpfhiy@ (Early morning) comes it is correct as "fhiy@ by scoring "mjp@/ When we come to the confession statement, though we find no time generally, it is stated @mjpfhiy@ thereby in a way indicating that the search, seizure, recovery and recording of confession statement should have taken place probably in the morning. But the fact remains, as disclosed by the acceptable oral evidence of P.Ws.1 & 2, that the premises was searched only at about 8.00 a.m. P.W.1 has deposed that they were watching the premises from the early morning of 21.10.2002 and probably in that view, they would have written, while preparing the mahazar, knowingly or unknowingly as early morning, giving the time also. Then realising the mistake, it seems to my mind, corrections were done as if the search was conducted at 8.00 a.m. The corrections are satisfactorily explained by the author of this document viz., P.W.1 and I am unable to ignore the same, considering the other clinching materials and non violation of the provisions of the Act. Therefore, taking the corrections alone, I am unable to doubt about the genuineness of the prosecution case, as if from the accused, Ganja was not seized on 21.10.2002 at about 8.00 a.m. or this document would have been prepared elsewhere falsely. Therefore, taking the corrections alone, I am unable to doubt about the genuineness of the prosecution case, as if from the accused, Ganja was not seized on 21.10.2002 at about 8.00 a.m. or this document would have been prepared elsewhere falsely. Really if the documents were prepared against or contrary to the real facts, then without any correction also, the respondent could have prepared the documents, which they were not attempted, thereby showing, when mistake had occurred, while preparing the mahazar, they have corrected the same, which fails to create any spontaneous doubt in my mind, thereby allowing the accused to escape from the clutches of the law. Thus ignoring the corrections made therein and accepting the mahazar as well as the oral evidence of P.Ws.1 & 2, I conclude that only from the accused, P.W.1 had recovered or seized 51 kgs of Ganja, thereby establishing the possession as well as contravention of Section 8(c) and 20(ii)(b)(C) of the Act, for which the accused should be dealt with properly. 17. The submission of the learned counsel for the appellant, that after obtaining the signature of the accused in a blank paper, confession was recorded by the respondent is unacceptable to me. Though an attempt is made to create a doubt over Ex.P.5 pointing out the difference in ink, as well as the signature of the accused available at the bottom of the page as if the contents were written to come within the space in a blank paper, wherein the signatures were obtained. It seems, by going through Ex.P.5, that document was originally written by one pen and probably after the ink is over, another pen was used and under the anxiety of bringing the statement within the second page, there appears to be some close writing, between the lines. Since no space is available at the bottom, the person, who had recorded the statement and the person who have seen the same also, has signed on the right side of the document, in which I cannot find any fault. Thus, the confession statement also, which was given voluntarily, as spoken P.Ws.1 & 2, proved the offence, as rightly held by the trial Court. 18. For the foregoing reasons, it is concluded that the prosecution has made out a case beyond all reasonable doubt attracting the ingredients of Section 8(c) r/w 20(b)(ii)(C), warranting severe punishment also. Thus, the confession statement also, which was given voluntarily, as spoken P.Ws.1 & 2, proved the offence, as rightly held by the trial Court. 18. For the foregoing reasons, it is concluded that the prosecution has made out a case beyond all reasonable doubt attracting the ingredients of Section 8(c) r/w 20(b)(ii)(C), warranting severe punishment also. I do not find any reason to interfere with the findings of the trial Court, since the learned trial Judge has not committed any violation of law, while assessing the evidence, in coming to the conclusion of conviction. Hence the appeal is devoid of merits and it is liable to be dismissed. In the result, the appeal is dismissed, confirming the conviction and sentence of the trial Court.