JUDGMENT Ashim Kumar Banerjee, J. 1. ON July 26, 2004 at 10.00 a.m. Sub-inspector Shri Somen Bhattacharjee of Narcotic Cell, Detective Department, Calcutta Police received a source information that a white Tata Sumo bearing registration No. GJ-9M-3244 would be crossing Red Road from South to North, transporting Ganja (Cannabinoids)). Shri Bhattacharjee immediately informed his superior and started acting on the said information. Mr. Bhattacharjee led by the Officer-in-Charge, Narcotic Cell, Detective Department named Shri Sukumar Chakrabarty along with other members of the Force and investigation kit left for the spot at 10.20 a.m. They reached Red Road at 10.35 a.m. and Force were deployed at conspicuous places. Police vehicle was placed in such a manner so that the Tata Sumo could be intercepted. They waited in front of the main gate of Mahamadan Sporting Club. At about 11.30 a.m. a white Tata Sumo bearing the registration number referred to above was seen coming from South to North. Immediately it was intercepted in front of Mahamadan Sporting Club. Ten persons including the driver were inside the vehicle. ON a search being conducted, a paper cartoon was found in between the driver's seat and the seat next to the driver containing two large cakes of Ganja, weighing 27 kilograms. The officers apprehended all ten persons. They were given written option to be searched in presence of Gazetted Officer or a Magistrate. They declined the second option. The Additional Officer in-charge, Maidan Police Station who was a Gazetted Officer was called. Accordingly, Ashok Sarkar, the Additional Officer-in-Charge, Maidan Police Station arrived at the spot. In his presence the persons were searched. However, nothing objectionable could be found in their possession. Two large cakes of Ganja found in the paper cartoon were confiscated. Sample was drawn weighing 100 grams. 2. SHRI Somen Bhattacharyya made a written complaint to the Officer-in- Charge of the Maidan Police Station appearing at pages 2-8 of the paper book, narrating in detail about confiscation of Ganja so recovered from the Tata Sumo vehicle leading to arrest of ten persons including the driver and seizure of the vehicle in question. The accused were produced before the learned Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act). The learned Judge framed the charge as against each one of them as would appear from page 10-11. The accused were produced before the learned Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act). The learned Judge framed the charge as against each one of them as would appear from page 10-11. Each of the accused pleaded not guilty and opted to be tried. Pw-1 (Partha Roy):- Shri Roy was a constable attached the Detective Department, Kolkata Police. He prepared rough sketch map of the place of occurrence. He identified the rough sketch map tendered in evidence. Pw-2 (Kamal Laskar):- Kamal Laskar, a constable attached to the Detective Department took the photograph of the place of occurrence. Pw-3 (Dr. Utpal Saha):- Dr. Saha was the senior scientific officer attached to the State Drug Control and Research Laboratory. He tested the sample weighing 102 grams and confirmed that the sample was found to contain Ganja (Cannabinoids). According to him, the examination was conducted chemically and not mechanically. Pw-4 (Somen Bhattacharjee) :- Shri Bhattacharjee was an officer belonging to Narcotic Cell. He received the source information referred to above and acted upon the same. He narrated in detail about the investigation leading to search and seizure referred to above. His statement was consistent with the complaint lodged with the Maidan Police Station as referred to above. He deposed that he initially wanted to take the assistance of the gardeners belonging to Mahamadan Sporting Club who refused to accede to such request. He narrated in detail how the options were even to the accused. Pw-5 (Sk. Ziaul Kader):- Shri Kader was the Sub-Inspector attached to Maidan Police Station. He registered the formal FIR lodged by Shri Somen Bhattacharyya. Pw-6 (Ashok Kumar Sarkar) :- Shri Sarkar was attached to Maidan Police Station as Additional Officer-in-Charge. The raiding party called him at about 12.30 p.m. The Officer-in- Charge, Maidan Police Station ordered him to proceed to the place of occurrence. Accordingly, he reached the spot at 12.45 p.m. He found ten persons sitting inside the Tata Sumo car, two at the front and eight at the rear. He disclosed his identity. Shri Bhattacharjee gave option to the persons for being searched in his presence. On a search being conducted a paper cartoon was found just by the side of the driver. Upon opening of the packet two large cakes of Ganja weighing about 27 kilograms were found. He disclosed his identity. Shri Bhattacharjee gave option to the persons for being searched in his presence. On a search being conducted a paper cartoon was found just by the side of the driver. Upon opening of the packet two large cakes of Ganja weighing about 27 kilograms were found. The accused were searched in his presence, however nothing objectionable could be found in their possession. Shri Bhattacharjee seized the contra-banned articles as well as the car and arrested the accused. The witness was present for about forty five minutes at the place of occurrence. Seizure list was prepared in his presence at the spot. In reply to the query made during cross-examination, he deposed that the options were given in Bengali, Hindi, English respectively in writing. Pw-7 (Nitin Guptat):- The witness was a business man dealing with building materials. On July 26, 2004 he along with his friend J.P. Roy (Pw-11) was going towards Howrah from Bhowanipur by riding on a motorcycle. When they reached near Mahamadan Sporting Club ground they found one Tata Sumo detained by some people just before their motorcycle. One of them disclosed his identity as a police officer and requested them to be witness to the search. The witness thereafter narrated the incident and corroborated Pw-4 and 6. The witness identified his signature on the lebel of packets marked as Material Exhibits III and Material Exhibits V. In cross-examination he categorically denied of having involved in any case in any Calcutta Court. He identified Rajjak Bhai, the driver. He also deposed that he did not attend any Test Identification Parade to identify the accused. Pw-8 (K.H. Suriabanshi):- The witness belonged to Police Force at Gujarat. He deposed that on October 8, 2004 Shri T.K. Ghosh, a Kolkata Police Officer came to Gujarat to record a statement of one Popat Bhai Somabhai Patel. Shri Patel was the owner of the Tata Sumo car involved in the incident. Initially, Shri Patel was not available on October 8, 2004 when Shri Ghosh visited the police station. Subsequently the witness recorded the statement of Shri Patel on October 23, 2004. Witness identified Shri Patel in Court. Pw-9 (Popat Bhai Somabhai Pate):- The witness was the owner of the vehicle in question. According to him, the vehicle was kept at the garage of Ikbal Bhai at Biloda, Gujarat for repairing. Shri Patel was sick. Subsequently the witness recorded the statement of Shri Patel on October 23, 2004. Witness identified Shri Patel in Court. Pw-9 (Popat Bhai Somabhai Pate):- The witness was the owner of the vehicle in question. According to him, the vehicle was kept at the garage of Ikbal Bhai at Biloda, Gujarat for repairing. Shri Patel was sick. He was informed that his car was detained at Maharashtra. He however got back the car after furnishing bond. Pw-10 (Ashis Sengupta):- The witness was the Officer-in-Charge of Maidan Police Station on the date of the incident. At about 4.00 p.m. Shri Somen Bhattacharjee, Pw-4 came to the police station along with ten accused persons and lodged a written complaint. Pw-5, Shri Kader filled up the formal FIR on the basis of the written complaint. Shri Bhattacharjee produced the alamat. The witness proved the inventory list duly prepared and signed by him. Pw-11 (Joy Prakash Roy) :- Joy Prakash was a friend of Pw-7 Nitin Gupta. Joy Prakash was also a witness to the seizure. He corroborated Nitin Gupta by narrating the incident. He also identified the accused present at the dock. Joy Prakash however deposed that out of ten seizures he was not aware of the third, sixth and seventh. The last seizure was made at 2.30 p.m. and finished at 3.30 p.m. whereas the first one was made between 12.45 p.m. to 1.00 p.m. Pw-12 (Sukumar Chakraborty):- The witness was attached to Narcotic Cell. On the relevant date he was a member of the raiding party. He corroborated the other witnesses discussed above including Shri Somen Bhattacharjee, Pw-4. He deposed that he was also a Gazetted Officer. He further deposed that no contraband article could be found from the accused on being bodily searched. Pw-13 (Gurudas Chakraborty):- The witness was attached to Maidan Police Station. On the relevant date he interrogated the accused persons and recorded their statements. He arranged for putting the accused in Central Lockup at Lalbazar. On the following day he produced the accused in Court. He sent the sample of the seized alamat to the laboratory for chemical examination. On August 10, 2004 he received a letter from the Narcotic Control Bureau (N.C.B.) and came to know that Intekhab Khan and Gul Nawaz being the appellants were wanted in connection with a case pending before the learned Sub- divisional Judicial Magistrate, Pratapgarh, Chitargarh, Rajasthan. He sent the sample of the seized alamat to the laboratory for chemical examination. On August 10, 2004 he received a letter from the Narcotic Control Bureau (N.C.B.) and came to know that Intekhab Khan and Gul Nawaz being the appellants were wanted in connection with a case pending before the learned Sub- divisional Judicial Magistrate, Pratapgarh, Chitargarh, Rajasthan. On investigation he verified the ownership of the vehicle in question. Thereafter he handed over the case to Shri Tushar Kanti Ghosh, S.L, Detective Department, Lalbazar for follow up action. Pw-14 (Tushar Kanti Ghosh) :- Shri Ghosh, a police officer went to Gujarat and had been to Samlaji police station for the purpose of interrogation of the owner of the vehicle in question being Pw-9. He was however not successful as the owner being Pw-9 was out of station. Ultimately he received a letter from the police station on November 4, 2004 that vehicle did belong to Shri Patel and his statement was recorded in English by the concerned police station. He proved the sample of the seized substance bearing his signature and seal of Detective Department, Lalbazar. Pw-15 (Dhananjoy Chakraborty) :- The witness was Officer-in-Charge, Detective Department, Malkhana. On the relevant date he received the seized article and registered the same in Malkhana Register and took charge of the seized article. 3. ALL the accused were examined by the Magistrate under section 313 of the Criminal Procedure Code. Identical questions were asked to each of the accused as we find from pages 66-144. The accused pleaded innocence. According to appellant No.8 (CRA 611/2009) Intekhab Khan, he was arrested from Howrah Station and nothing was recovered from his possession. He had no idea of the seizure of the vehicle Tata Sumo or the contraband article in front of Mahamadan Sporting Ground. The other accused Rajjak Bhai Mansuri flatly denied the charges and did not specifically take any alibi. The accused Raj Kumar Yadav stated that they were "falsely arrested from Howrah". The accused Gulnawaz Khan deposed that he did not know Red Road. He was not in Tata Sumo. He was arrested from Howrah while coming to Calcutta with his uncle Intekhab Khan for tour. He did not know rest of the accused. His signature was obtained forcefully on a blank paper. The accused Gulnawaz Khan deposed that he did not know Red Road. He was not in Tata Sumo. He was arrested from Howrah while coming to Calcutta with his uncle Intekhab Khan for tour. He did not know rest of the accused. His signature was obtained forcefully on a blank paper. The accused Ajit Singh, Birendra Pal, Ashok Bhai, Kanji Bhai, Kalswa, Hemal Kumar and Amrish Bhai Joshi flatly denied the charges and contended that nothing was recovered from their possession. The accused Acharya Matta Maoji mostly kept mum in reply to the questions and at the endi stated that the evidence was false. The accused Kale Khan flatly denied the charges and stated that he was not in Tata Sumo. 4. CONSIDERING the evidence so discussed and analyzed above, the learned Judge, Special Court under NDPS Act held all the accused guilty of the offence and convicted them accordingly under section 20(b)(ii)(C) read with section 29 of the NDPS Act. The learned Judge sentenced them for rigorous imprisonment for ten years coupled with a fine of rupees one lakh each and in default to suffer further rigorous imprisonment for two years under section 20(b)(ii)(C) of the NDPS Act. The learned Judge sentenced all of them for rigorous imprisonment for ten years and a fine of rupees one lakh and in default to suffer rigorous imprisonment for two years for the offence punishable under section 29 of the NDPS Act. The learned Judge however directed the sentence to run concurrently. Being aggrieved and dissatisfied with the judgment and order of the learned Special Judge the appellants preferred the above two appeals which we heard on the above mentioned dates. 5. MR. Milan Mukherjee, learned Counsel appearing for both the groups of appellants raised three issues:- i) The FIR was lodged after the seizure had been made and the accused had been arrested which was illegal and irregular and would vitiate the trial and the result therefrom. ii) The options said to have been given to the accused under section 50 of the NDPS Act were illegal and irregular. iii) The pre-requisites of section 50 were not performed by the raiding party which vitiated the trial and the result therefrom. iv) The learned Judge put jumbled up question to the accused while examining them under section 313 of the Criminal Procedure Code. iii) The pre-requisites of section 50 were not performed by the raiding party which vitiated the trial and the result therefrom. iv) The learned Judge put jumbled up question to the accused while examining them under section 313 of the Criminal Procedure Code. The accused were thus prejudiced and could not defend themselves before the learned Judge. Such prejudice caused to the accused would per se vitiate the trial and the result thereof. Elaborating his submissions MR. Mukherjee took us to the evidence so discussed above. According to MR. Mukherjee, the prosecution charged the accused of committing a conspiracy at Gujarat whereas the complaint was lodged at Maidan Police Station at Kolkata involving six persons from Gujarat and four from other different places outside Gujarat. According to MR. Mukherjee, there were anomalies galore which would per se vitiate the trial. According to him, the raiding party purported to seize two calkes of Ganja whereas the chemical analysis described the sample as containing flowery tops, seed and stalks which could not be termed as "cake". In this regard he referred to the Collins Concise Dictionary. According to MR. Mukherjee when the contraband article was purportedly found from the Tata Sumo car it was the bounden duty of the prosecution to charge the owner of the vehicle having vicarious liability. The owner of the vehicle was not charged with the offence committed in the said car. On the issue of compliance of section 50, MR. Mukherjee contended that the additional Officer-in-Charge never disclosed his identity as a Gezetted Officer before the accused. Hence, the pre-requisites of section 50 were rendered nugatory. In this regard he referred to the written options tendered in evidence to show that the additional Officer-in-Charge was never described as Gazetted Officer. MR. Mukerjee further contended that most of the accused were Gujarati speaking and not Hindi. Hence, purported interpretation of the option written in English, in Hindi was not in consonance with the safeguards provided in section 50. MR. Mukherjee was critical about the evidence of PW-7 Shri Nitin Gupta who deposed that he waited for about forty five minutes whereas his friend Joyprakash deposed that the seizure continued up to 2.30 p.m. Moreover the FIR also recorded that the incident took place at about 2.40 p.m. On the issue of involvement of PW-6 the Additional Officer-in-Charge MR. MR. Mukherjee was critical about the evidence of PW-7 Shri Nitin Gupta who deposed that he waited for about forty five minutes whereas his friend Joyprakash deposed that the seizure continued up to 2.30 p.m. Moreover the FIR also recorded that the incident took place at about 2.40 p.m. On the issue of involvement of PW-6 the Additional Officer-in-Charge MR. Mukherjee contended that no proof came out in evidence as to whether the Additional Officer-in-Charge recorded any general diary while leaving the police station and coming back after his performance as a gazetted officer. He referred to section 52-A(2). In support of his submissions MR. Mukherjee relied on the following decisions :- i) 1995 C Cr. LR (SC) 346 (Saiyad Modh. Saiyad Umar Saiyed and Ors. vs. State of Gujarat) ii) 2000 Calcutta Weekly Notes Page-373 (Jadunandan Roy vs. State of West Bengal) iii) AIR 2002 SC 3343 (Avtar Singh and Ors. vs. State of Punjab) vi) 2007(1) SCC (Cri.) 377 (Dilip and Anr. vs. State of Madhya Pradesh) v) 2009(2) SCC (Cri.) 243 (State of Punjab vs. Hari Singh and Ors.) 6. SHRI Ranjit Ghosal, learned Counsel appearing for the prosecution contended that the seizure and occupancy in the Tata Sumo car were proved through evidence. Such proof was not rebutted by the defence. According to Mr. Ghosal, each and every issue raised by Mr. Mukherjee was answered by the learned Judge in His Lordship's judgment and order impugned in this appeal. He referred various pages of the judgment to counteract the submission of Mr. Mukherjee. Mr. Biswaranjan Ghosal, learned Senior Counsel appearing for N.C.B. adopted the submissions of Mr. Ranjit Ghosal and added that section 50 had no application in view of the fact that the case was initiated on the basis of confiscated cakes of Ganja found in a paper cartoon within the Tata Sumo car. It came out in evidence that nothing was recovered from ten accused. Hence question of observance of the provisions of section 50 did not arise at all. Mr. Ghosal, as and by way of alternative submissions, contended that even if it was held that there had been some irregularity during investigation or conducting of the trial such procedural lapses per se would not vitiate the trial or the result therefrom once the offence was proved through evidence. According to Mr. Ghosal, the identity of the accused were disclosed by themselves. According to Mr. Ghosal, the identity of the accused were disclosed by themselves. Those identities were verified by the Police Force. They were identified by the seizure witnesses on the date of trial. The witnesses corroborated each other on the happening of the incident. Hence, there was no scope for upsetting the decision of the learned Special Judge merely relying on minor contradictions which were insignificant for the present purpose. He prayed for dismissal of the appeals. 7. BEFORE we express our opinion on the issue let us first discuss the precedents cited at the Bar. Mr. Mukherjee cited the Apex Court decision in the case of Saiyad Modh. Saiyad Umar (supra); Dilip and Anr. (supra); Avtar Singh (supra) and Jadunandan Roy (supra) and to support his contention that the provisions of section 50 was performed in breach. It is well-settled principle of law that ratio decided in a precedent would only be applicable when the facts involved therein would have resemblance with the facts involved in the case in hand. In the case of Saiyad Modh. Saiyad Umar (supra), the police party raided the area and 55 grams of Charas was found from the first appellant and 10 grams each from the second and third appellants. The learned sessions Judge convicted the appellants. The appellants contended before the High Court that provision of section 50 was not followed in the case. There was no evidence to show that the police had informed the appellants that they had right to be searched in presence of a Gazetted Officer. The High Court rejected such contention being taken for the first time at the appellate stage. Reversing the decision of the High Court, the Apex Court observed, "............it is to be taken as an imperative requirement on the part of the officer intending to search, to inform the person to be searched of his right that if she so chooses, he will be searched in presence of a Gzetted Officer or a Magistrate". In the case of Avtar Singh (supra), the accused were not asked any question while conducting their examination under section 313 of the Criminal Procedure Code that they were the persons in possession of Popy Husk placed in the vehicle. In the case of Avtar Singh (supra), the accused were not asked any question while conducting their examination under section 313 of the Criminal Procedure Code that they were the persons in possession of Popy Husk placed in the vehicle. Hence, it was not proper to raise a presumption under section 114 of the Evidence Act nor was it safe to conclude that prosecution established beyond reasonable doubt that, the appellants were in possession of Popy Husk. In the case of Dilip and Anr. (supra), the scooter was searched where contraband goods were found. The Apex Court observed that although provisions of section 50 was strictly not applicable for conducting search of the scooter keeping in view the fact that the person of the appellants was also searched it was obligatory to comply with the said provision. Such observation was made by the Apex Court in the light of the fact that the seizure witnesses were declared hostile as they did not support the case of the prosecution. The Apex Court lastly concluded by observing that the High Court could not have brushed aside the findings of the learned Sessions Judge without meeting the reasoning assigned by him. In the case of Jadunandan Roy (supra), Three-Judge Bench decision of this Court held that non-compliance of section 50 was fatal. The order of acquittal was signed by the full bench on the basis of majority opinion. We express our doubt as to the validity of the said decision in view of the Appellate Side Rules of our Court which does not empower a Three-Judge bench to take a decision on the basis of majority. Chapter VII Rule 6A of our High Court Rules (Appellate Side), inter alia, provides that in case of disagreement in a Three-Judge bench the matter must be referred to a larger bench of five Judges. From the cases so discussed above, it would appear that neither of them could be fit in the present case. Here the accused were duly informed in writing that they were entitled to be searched in presence of a Magistrate or a Gazetted Officer. They exercised their options to be searched in presence of a Gazetted Officer, PW-6. The Additional Officer-in-Charge was called from Maidan Police Station. He was not a member of the raiding party. The accused also did not raise any objection for his presence. They exercised their options to be searched in presence of a Gazetted Officer, PW-6. The Additional Officer-in-Charge was called from Maidan Police Station. He was not a member of the raiding party. The accused also did not raise any objection for his presence. Accordingly, the provision of section 50, in our view, was duly complied. Mr. Mukherjee contended that there was no specific assertion that PW-6 informed the accused that he was a Gazetted Officer. In our view, it was redundant. PW- 6 was called not as Additional Officer-in-Charge but as Gazetted Officer. The fact that he was a Gazetted Officer was not in dispute. Hence, the contention raised by Mr. Mukherjee on that score is not tenable. The Apex Court decision in the case of State of Punjab (supra) was cited by Mr. Mukherjee to support his contention that provisions of section 313 of the Criminal Procedure Code was performed in breach as the learned Judge put jumble up questions to the accused. The Apex Court herein relied on the decision in the case of Avatar Singh (supra) and observed that the essence of acquisition was not brought to the notice of the accused. Such omission affected the prosecution case. We have carefully examined the questions put under section 313 and the answers given by each of the accused. It is true that the questions were jumbled up to some extent. It would have been nice if the questions could be broken and made simple so that the accused could answer those properly. We however see that the accused understood the questions and its purport and duly answered those. Some of them contended that they were falsely implicated. They were not riding on any Tata Sumo car. They were arrested from Howrah Station and was being unnecessarily harassed. The others flatly denied the charges. None of the accused expressed their inability to answer in view of alleged difficulty of understanding. There is one more salient feature involved in the case of State of Punjab (supra). There was definite assertion that it was a fake seizure made by the police officers as a retaliation to earlier enmity. In such backdrop the Apex Court was critical on the conduct of the trial. In our case, nothing as such, came out in evidence so that we could apply the ratio decided therein in the present case. There was definite assertion that it was a fake seizure made by the police officers as a retaliation to earlier enmity. In such backdrop the Apex Court was critical on the conduct of the trial. In our case, nothing as such, came out in evidence so that we could apply the ratio decided therein in the present case. In the instant case, the police officers got a secret information. They worked out on such information in terms of the provisions of section 42 of the NDPS Act. The vehicle was intercepted. The contraband articles were found in the vehicle and seized in presence of independent witnesses being PW-7 and PW-11. The substance was proved by the chemical analyst as "Ganja" being prohibited under the provisions of NDPS Act. The ownership of the vehicle was proved through PWs-8 and 9. The learned Judge analyzed the evidence and ultimately held each one of them guilty of the offence. We do not find any scope of disagreement on that score. The appeal fails and is hereby dismissed.