Judgment :- (Criminal Appeal filed under Section 378 Criminal Procedure Code against the judgment dated 17.4.1997 of acquittal passed in C.C.No.237 of 1993 by the Special Court for NDPS Act Cases, City Civil Court Buildings, Chennai.) This appeal is filed against the acquittal of the respondent herein, who is the accused in C.C.No.237 of 1993 on the file of the Special Court for NDPS Act Cases as per the judgment dated 17.4.1997 2. The complaint was filed against the respondent (hereinafter referred to as "the accused") that he was found in possession of 350 grams of heroin kept concealed in a milk cooker and 245 grams of heroin in Agar Bathis packets totally 595 grams of heroin without any valid permit or licence on 17.4.1993 at 5.45 p.m. at Meenampakkam Airport and attempted to smuggle out of India attracting the offences under Section 8(c) read with Sections 21, 23 and 28 of N.D.P.S. Act, 1985. 3. The facts that led to the filing of this appeal are as follows:- "(a) P.W.1 was working as Intelligence Officer in Madras International Airport and he was on duty at the Export Hall on 17.4.1993 at 5.45 p.m. On seeing the accused moving suspiciously in the checking counter, P.W.1 intercepted him and he revealed his name as Rajendra Prasad. The accused was taken into the Air Intelligence Unit along with one white colour plastic bag, which he was carrying on from the beginning. P.W.1 entrusted the accused with the baggage with the Superintendent and brought one Ravi and P.W.3 Muralidharan, who were working as Indian Airlines Security Staff. The white plastic bag was opened, in which one milk cooker(M.O.1) and other utensils were found. Inside the milk cooker(M.O.1), it was found colour powdered substance, suspected to be brown sugar and it was found weighing 350 grams(M.O.3). Two samples of 10 grams each were taken and both samples(M.O.4 series) were sealed in the presence of the accused and the above witnesses and obtained their signatures in the samples(M.O.4 series). Accused and two witnesses were taken to Export baggage hall where the accused identified his checked baggage. The baggage tag and the claim tag corresponding matched each other. Two samples of 10 grams each were taken and both samples(M.O.4 series) were sealed in the presence of the accused and the above witnesses and obtained their signatures in the samples(M.O.4 series). Accused and two witnesses were taken to Export baggage hall where the accused identified his checked baggage. The baggage tag and the claim tag corresponding matched each other. It was the green colour zipper bag and in the Air Intelligence room, while checked, it found to contain Agar Bathis packets (M.O.2) and house-hold articles and from the Agar Bathis, they recovered 15 cellophane paper containing brown powdered substances suspected to be brown sugar which weighing 245 grams. Two samples (M.O.5 series) were taken, which were sealed and signed by witnesses. The brown sugar was seized under mahazar Ex.P-1 in the presence of the witness. (b) As per the direction of the Superintendent, P.W.5 Intelligence Officer, Customs, Anna International Airport at Meenampakkam, Chennai, recorded the statement of the accused (Ex.P-10) after seizure of heroin/brown sugar. Accused has written his own statement (Ex.P-10) in Malayalam. Translation of Ex.P-10 is Ex.P-11 (c) P.W.2, Assistant Chemical Examiner received two khaki pouches on 3.5.1993. After analysing, he sent the preliminary report Ex.P-7 and final report Ex.P-8 that the samples contained "Di-acetyl morphine". As per the sanction accorded under Ex.P-9, the complaint was filed against the accused." 4. Before the trial Court, six witnesses P.Ws.1 to 6 were examined, Exs.P-1 to P-12 were marked and M.Os.1 to 5 were also marked. 5. When the accused was questioned under Section 313 of the Code of Criminal Procedure, on the basis of the incriminating materials made available against him, by the prosecution, he denied the charges and stated that false case has been foisted against him. 6. 5. When the accused was questioned under Section 313 of the Code of Criminal Procedure, on the basis of the incriminating materials made available against him, by the prosecution, he denied the charges and stated that false case has been foisted against him. 6. The trial Court considering the evidence adduced on the side of the complainant, found the accused not guilty under Section 8(c) read with Sections 21, 23 and 28 of N.D.P.S. Act mainly on the ground that there have been material lapses, in that the arrest memo is in English and that no seal has been affixed on the samples recovered by the Intelligence Officer P.W.1 and also the fact that both the samples were sent for analysis and as such prejudice have been caused to the accused since he could not seek re-analysis and also that there is no evidence as to whether the same samples were retained till they sent to analysis and that the very metal of M.O.1, the milk cooker described as stainless steel, could not be confirmed by P.W.3 and accordingly acquitted though it has been observed that there have been no contravention of mandatory provisions. The acquittal is now challenged in this appeal. 7. Heard Mr. P.N. Prakash, learned Special Public Prosecutor appearing for the State and Mr. S. Panneerselvam, learned counsel appearing for the respondent. 8. Learned Special Public Prosecutor appearing for the appellant / State submitted that P.W.1, Preventive Officer at Madras Customs House, who was Air Customs Officer at Madras International Airport at the time of occurrence and who was empowered to take up cases under the Act, has stated in his evidence about the offence made by the accused by smuggling the heroin packet, M.O.3, weighing 350 grams of brown sugar, which was kept in the Milk Cooker, M.O.1, and also in the packets of Agarbathis, M.O.2, containing 245 grams of brown sugar and the same were seized under mahazar Ex.P.1, in the presence of P.W.3, Security Supervisor, Indian Airlines Limited, and necessary samples were sent for analysis by P.W.2, Assistant Chemical Examiner, Customs. He further submitted that as per the preliminary report, Ex.P.7, and final report, Ex.P.8, the samples contained Di-acetyl morphine, following which, P.W.4, Preventive Officer, Customs, submitted the case to the Collector of Customs, Madras, for obtaining sanction order Ex.P.9 and the complaint was filed against the accused. He further submitted that as per the preliminary report, Ex.P.7, and final report, Ex.P.8, the samples contained Di-acetyl morphine, following which, P.W.4, Preventive Officer, Customs, submitted the case to the Collector of Customs, Madras, for obtaining sanction order Ex.P.9 and the complaint was filed against the accused. It is further submitted by the learned Special Public Prosecutor that the accused had given his statement in his own handwriting in Malayalam language Ex.P.10 and the same was transcribed by P.W.5, Intelligence Officer, R.S.I. Unit, Madras, which is Ex.P.11. 9. It is the further argument of the learned Special Public Prosecutor that as per Ex.P.7, preliminary report, and Ex.P.8, final report, the contraband seized from the accused were sealed with Customs Seal No.181, which is also spoken to by P.W.1, and as such, the contraband were duly sealed and on this aspect, P.W.1 and P.W.3 were also not cross-examined. 10. As regards samples, learned Special Public Prosecutor submitted that they have been marked as M.O.4 series and M.O.5 series, which have been taken out of the contraband seized from the accused and the original contraband seized itself has been marked and no application was made by the accused for sending the samples for re-analysis. It is the further submission of the learned Special Public Prosecutor that since the arrest memo was not served in Malayalam language, there is no lacuna on the part of the prosecution to vitiate the case. It is further submitted that inasmuch as the milk cooker, M.O.1, has been marked and identified by P.W.1 and P.W.3, the evidence of P.W.3 that he does not know the nature of metal used for manufacturing M.O.1 is not a serious infirmity so as to believe the case of the complainant. 11. Learned Special Public Prosecutor, in support of his contention, relied on the decision of this Court in DEEPA GHOSH v. STATE, ETC. (1997-1-L.W.(Crl.)41) wherein it has been held as under: "A conjoint reading of Sections 42 and 50 would make it clear that when the person on prior information that the offence has been committed by a person in a particular area, the Officer attached to Narcotics Bureau should comply with the condition contemplated under S.50 of the Act by taking him to the Gazetted officer in whose presence search could be effected if he so requires." ......... ......... ......... ....... ......... ......... ......... ...... ......... ......... ....... ......... ......... ......... ...... there is no difficulty in coming to the conclusion that S.50 will not be applicable to the present case where the person accused of an offence was searched only on suspicion". 12. Learned counsel for the respondent / accused vehemently contended that there have been no mentioning of the seal in Ex.P.1 mahazar and only in the evidence, P.W.1 has stated that the contraband have been sealed with the Customs seal. He further argued that procedures have not been followed and more particularly, by taking him to the Gazetted Officer and as such, Section 50 of the Act has not been complied with. 13. Learned counsel for the accused, in support of his contention, relied on the following decisions: (i) MD. JAINULABDIN v. STATE OF MANIPUR (1991 CRL.L.J. 696), in which, the Gauhati High Court held that the arrested person in respect of offence under the Act has got a right to be searched in the presence of a Gazetted Officer or Magistrate and compliance of Section 50 of the Act is mandatory. It was further held as under: "seizure before a gazetted officer or before a Magistrate will make the recovery creditworthy and remove any scope to implicate a person falsely. This intention of the legislature as stated above, makes the provision mandatory. Therefore, after a person is arrested and before a search is conducted it is mandatory on the part of the officer to inform the accused that he has a right to be searched in presence of a gazetted officer or a Magistrate. The accused will get the benefit if there is a failure to comply with this provision. Where in the present case the entire operation was done in presence of gazetted officer viz. Superintendent of Police, there was no violation of S.50 of the Act." (ii) SAIYAD MOHD. The accused will get the benefit if there is a failure to comply with this provision. Where in the present case the entire operation was done in presence of gazetted officer viz. Superintendent of Police, there was no violation of S.50 of the Act." (ii) SAIYAD MOHD. SAIYAD UMAR v. STATE OF GUJARAT (1995 CRI.L.J. 2662), in which, following the earlier judgment of the Supreme Court in State of Punjab v. Balbir Singh (1994 AIR SCW 1802), the Hon'ble Supreme Court held that the provisions under Section 50 are mandatory and the officer concerned is obliged to inform accused person of his right to be searched in presence of Gazetted Officer or Magistrate and if the Officer concerned is not deposing as to compliance of mandatory procedure, the Court can assume that possession of illicit articles by accused were not established. (iii) MOHINDER KUMAR v. STATE, PANAJI, GOA (1995 CRI.L.J.2074), in which, it was held by the Hon'ble Supreme Court that provisions of Sections 42 and 50 dealing with steps to be taken by officer making arrest, search or seizure are mandatory and for the non-compliance of the said provisions, the accused is entitled to acquittal. (iv) VALSALA v. STATE OF KERALA (1994 CRI.L.J.1), in which, the Hon'ble Supreme Court held regarding the delay of more than three months in sending seized article to Court that if there is no evidence to show that article was sealed and kept in proper custody in police station, sending of the very article seized to chemical examiner is highly doubtful and, therefore, conviction cannot be sustained. (v) Ajaya Kumar Naik V. State Of Orissa (1995 Cri.L.J. 82), in which, it has been held by the Orissa High Court that the Investigating Officer stated that he asked the accused whether he wanted to be searched before Gazetted Officer but failed to mention the vital aspect in case diary and such non-mentioning renders search conducted vulnerable. 14. As rightly stated by the trial Court, there have been no violation of mandatory provisions of Sections 41, 42 and 50 of the NDPS Act in that the seizure was not made of any advance information and inasmuch as the seizure was made from the accused in a public place, Clause 43 of the NDPS Act is applicable and the recovery is also not out of personal search made on the accused. Inasmuch as the accused was searched only on suspicion, Section 50 of the NDPS Act is not applicable. 15. As it is rightly argued by the learned counsel for the respondent/accused, it is not mentioned in Ex.P-1 mahazar that the contraband has been sealed and it is stated in the evidence of P.W.1 that the contraband was sealed with the Customs seal. 16. The contraband from the accused was seized on 17.4.1993 and the representative sample was tested by P.W.2 on 3.5.1993, who sent the preliminary report Ex.P-7 dated 21.5.1993 and final report Ex.P-8 dated 18.6.1993. As such, it is clear that there have been delay in respect of the contraband seized by P.W.1 and there is nothing to show that the articles were seized and kept in proper custody and as such, sending of the very articles seized to the Chemical Examiner, P.W.2, is highly doubtful and on that basis, the conviction cannot be sustainable. 17. As rightly argued by the learned Special Public Prosecutor, the contraband was sealed with Customs seal No.181 as also referred to in Exs.P-7 and P-8 and as deposed by P.W.1 in his evidence and as such, the observation of the trial Court that there is every possibility for substitution cannot be said to be correct. 18. Further, the contraband contained the seal of NDPS Court which was broken in open Court and found to be intact. Inasmuch as the contraband in original itself has been made available before the trial Court, the observation of the trial Court, for not taking samples in duplicate and preventing the accused from taking the sample for re-analysis, is also not correct, in view of the fact, the original contraband seized itself could have been sent for re-analysis, if application is filed by the accused and further as rightly argued by the learned Special Public Prosecutor that as per the NDPS Act, there is no statutory option for sending the samples for re-analysis by the accused. 19. Inasmuch as P.Ws.1 and 3 have identified the milk-cooker, M.O.1, in the same broken condition as was carried by the accused, the observation of the trial Court that the evidence of P.W.3 about his non-knowing the nature of metal used for manufacturing M.O.1, is not a serious defect for disbelieving the case of the prosecution. 19. Inasmuch as P.Ws.1 and 3 have identified the milk-cooker, M.O.1, in the same broken condition as was carried by the accused, the observation of the trial Court that the evidence of P.W.3 about his non-knowing the nature of metal used for manufacturing M.O.1, is not a serious defect for disbelieving the case of the prosecution. Further, it is the evidence of P.W.1 that excepting M.O.1 aluminium cooker no other cooker was recovered, but mistakenly it is stated in the mahazar Ex.P-1 that the cooker is of stainless-steel cooker 20. The finding of the trial Court in acquitting the accused need not be disturbed and does not call for any interference, though not on the grounds as stated in the judgment of the trial Court, but on the ground of delay in sending the seizure article for the purpose of analysis, which was only received on 3.5.1993 by the Chemical Examiner though it was seized on 17.4.1993 throwing doubt as to whether the same was kept in proper custody before it was sent for such analysis. The other ground is that it is not mentioned in Ex.P-1 mahazar that the contraband has been sealed and it is stated in the evidence of P.W.1 that the contraband was sealed with the Customs seal. Further, the sample was taken on 17.4.1993 and the complaint was preferred only on 4.11.1993. After trial in C.C.No.237 of 1993, the accused was acquitted as per the judgment dated 17.4.1997 by the Special Court for NDPS Act Cases, Chennai, against which this appeal was filed in 1997. 21. In State By Food Inspector, Kadaiyanallur Municipality V. Syed (1991 L.W. (Crl.) 63), this Court held that sending for analysis one part of the sample to the Public Analyst and remaining two parts to local authority along with Form VII and evidence to that effect in the deposition of the Food Inspector is sufficient and failure to forward the intimation to the local authority under Section 11(1)(c)(i) is not a vitiating factor and, therefore, the acquittal of the accused cannot be sustained. This Court has further held that since the sample was taken in 1983 and nearly seven years have elapsed, the acquittal of the accused need not be disturbed. This Court has further held that since the sample was taken in 1983 and nearly seven years have elapsed, the acquittal of the accused need not be disturbed. In State By Food Inspector V. Kumaresan (1992 L.W. (Crl.) 392), this Court has held as follows: "The question that now looms large is as to whether the verdict of acquittal, which remained for quite a long period, could be disturbed by the reversal of the finding of learned trial Magistrate, as stated above. Taking into account the fact that the respondent/accused had been facing the mental agony of the Damocles' Sword of prosecution hovering over his head, right from the day of taking of the samples, till upto the time of rendering of the verdict of acquittal and again from the time of subsequent proceeding by way of appeal against acquittal till today, I feel it would not besides justice in not disturbing the verdict of acquittal, despite the fact that the finding of the trial Magistrate, on which the verdict of acquittal is based is set aside. I, therefore, allow the verdict of acquittal to remain as it is, without being disturbed, in the peculiar circumstances of the case." and in State By Public Prosecutor V. Palani (1997-2-L.W. (Crl.) 782), this Court has held as under: "The acquittal of the respondent / accused is not sustainable in law, and therefore, the same is liable to be set aside. Except pointing out the illegality committed by the Court below in acquitting the accused, the respondent/accused is not sentenced in any manner, in the appeal in view of the long lapse of time. The appeal is disposed of accordingly." 22. In this case the sample was taken on 17.4.1993 and the complaint was preferred only on 14.11.1993 and after trial the case ended in acquittal as per judgment dated 17.4.1997 and nearly 12 years have elapsed. Therefore, considering the long lapse of time, the accused is entitled for acquittal. The finding of the trial Court need not be disturbed as held by this Court in the judgments cited above. 23. Therefore, considering the long lapse of time, the accused is entitled for acquittal. The finding of the trial Court need not be disturbed as held by this Court in the judgments cited above. 23. In the result, the appeal is dismissed confirming the judgment dated 17.4.1997 made in C.C.No.237 of 1993 in acquitting the accused from the charges levelled against him under Section 8(c) read with Sections 21, 23 and 28 of N.D.P.S. Act, 1985 on different grounds as stated in this judgment and not on the grounds as stated by the trial Court.