Judgment :- 1. All the appeals are preferred by the accused against the Judgment of conviction, dated 30.09.2004 made in C.C.No.829 of 2001 on the file of the Special District and Sessions Judge for E.C.Act and N.D.P.S Act Cases, Madurai 2. Crl.A.No.126 of 2004 is preferred by the appellant / A3 against the conviction and sentence imposed in C.C.No.829 of 2001 by Judgment, dated 30.09.2004 under Section 8 (c) r/w 20 (b) (ii) (New Section 8 (c) r/w 20 (b) (ii) (B)) of NDPS Act, whereby the appellant / A3 was convicted and sentenced to undergo 18 months R.I and to pay a fine of Rs.2,000/-with default sentence of one month R.I. 3. C.A.No.170 of 2004 is preferred by the appellant / A1 in the aforesaid case, who was similarly convicted and sentenced as that of the co-accused / A3. C.A.No.276 of 2004 is preferred by the appellant / A2 against the aforesaid Judgment of conviction and sentence imposed in C.C.No.829 of 2001, by Judgment, dated 30.09.2004 and she was also similarly convicted and sentenced as that of the co-accused. 4. The short prosecution case is as follows : On 29.05.2001 at about 8.00 a.m, on information, the Inspector of Police, NIB CID, Madurai along with his party went to Sellur Bridge Station Road, near Thevar Rickshaw Stand, Madurai, the informer was present and identified the accused, after following the mandatory procedure under Section 50 of NDPS Act, after getting the consent for search, being conducted with the help of one Pandiammal, 7 kgs of Ganja was seized by the respondent police under mahazar in the presence of two witnesses. Thereafter, two samples, each containing 50 gms were prepared, as per procedure in the presence of witnesses, then the appellants / accused were arrested by the Inspector and taken to NIB CID office, Madurai and the case was registered. It is seen that charges were framed under Section 8 (c) r/w 20 (b) (i) (New Section 8 (c) r/w 20 (b) (ii) (B)) of NDPS Act against the appellants / accused. 5. As per the Judgment and the available records, it is seen that copies of documents relied on by the prosecution were furnished to the appellants / accused, as per Section 207 of the Code of Criminal Procedure. 5. As per the Judgment and the available records, it is seen that copies of documents relied on by the prosecution were furnished to the appellants / accused, as per Section 207 of the Code of Criminal Procedure. While framing of charge, the appellants / accused were questioned and they pleaded not guilty, hence, the case was posted for trial. 6. On the side of the prosecution, P.Ws. 1 to 5 were examined. Exs.P.1 to P.19 and M.Os.1 to 9 were marked and no witness was examined, no exhibits and material objects was marked on the side of the appellants / accused. After the trial, the appellants / A1 to A3 were found guilty and convicted by the Court below under Section 8 (c) r/w 20 (b) (i) (New Section 8 (c) r/w 20 (b) (ii) (B)) of NDPS Act. Each one of the accused was sentenced to undergo 18 months R.I and to pay a fine of Rs.2,000/- each and in default of payment of fine, to undergo further one month R.I. The period of sentence already undergone was ordered to be set off under Section 428 of the Code of Criminal Procedure. Challenging the conviction and sentence imposed by the Court below, all these three appeals have been preferred by the aforesaid accused. 7. Mr. M.M.E.Philip, learned counsel for the appellants, who has been appointed as Legal Aid Counsel, submitted that the prosecution has not established the case beyond reasonable doubt and that the mandatory provisions under the NDPS Act have not been complied with, however, the Court below has convicted the appellants / accused and pleaded for allowing the appeals and to set aside the conviction and sentence imposed by the Court below. 8. It is seen that as per the impugned Judgment, 3 out of 5 witnesses examined by the prosecution do not know as to how the contraband was seized from the appellants / accused. P.W.1 is only Chemical Examiner of the Forensic Department, who conducted chemical analysis. She has deposed in her evidence that she analysed the sample sent through the Court below and found that the samples contained cannabinoids, otherwise known as 'Ganja' and sent the report, dated 06.06.2001 marked as Ex.P.3, Ex.P.6 and Ex.P.9. The said evidence may establish that the samples sent were analysed and found to be cannabinoids. 9. She has deposed in her evidence that she analysed the sample sent through the Court below and found that the samples contained cannabinoids, otherwise known as 'Ganja' and sent the report, dated 06.06.2001 marked as Ex.P.3, Ex.P.6 and Ex.P.9. The said evidence may establish that the samples sent were analysed and found to be cannabinoids. 9. As per the prosecution case, requisition letter were sent to the Forensic Department through Court and the same were marked as Exs.P.1, P.4 and P.7. P.W.3, the Head Clerk of the Court below has deposed that the seized contraband and the samples were received by her from the respondent with a requisition letter to send the samples for chemical analysis. The contrabands were recovered by P.W.3 under Form-95. Subsequently, the samples were sent with a covering letter of the Court below to the Forensic Department for chemical analysis and therefore, it is seen that the samples were received by Judicial Magistrate No.II, Madurai on 29.05.2001 and on 31.05.2001, the same were received by the Special Court under NDPS Act in R.P.R.Nos.825 of 2001, 826 of 2001 and 827 of 2001. As per the evidence of P.W.1, the same were analysed and found as cannabinoid. 10. The vital aspect to be considered is whether the prosecution has established the seizure of the contraband from the appellants / accused beyond reasonable doubt, as stated by the prosecution and the mandatory provisions under Section 50 of the Act was complied with by the respondent. 11. It is seen that P.W.5, Inspector of Police has categorically admitted that he was not present at the scene of occurrence and he got the information on 29.05.2001 through the Head Constable No.963 over phone and that he instructed the Head Constable to proceed to the scene of occurrence and according to law, has deposed the evidence only based on the case file. He had no personal knowledge about the search and seizure of the contraband. 12. As per the evidence of P.W.2, on 29.05.2001, when he was the Gr.I Constable attached to the respondent, at about 7 a.m, the informer appeared in person and gave intimation to the head constable, P.W.4 that the accused would be carrying the contraband to the scene of occurrence and the intimation was reduced into writing at 7.15 a.m by P.W.4. As per the evidence of P.W.2, on 29.05.2001, when he was the Gr.I Constable attached to the respondent, at about 7 a.m, the informer appeared in person and gave intimation to the head constable, P.W.4 that the accused would be carrying the contraband to the scene of occurrence and the intimation was reduced into writing at 7.15 a.m by P.W.4. According to him, the Head Constable P.W.4 was accompanied by two other constables and proceeded to Sellur Bridge Station Road, near Thevar Rickshaw Stand, Madurai in a vehicle, bearing No. TSE 1153. At the scene of occurrence, the accused were identified by the informer. As requested by the Head Constable, P.W.4, P.W.2, Grade I Constable had agreed to be a witness. According to him, there were three woman accused and one male accused were found carrying separate polythene covers, that were seized by P.W.4 under separate mahazars in the presence of P.W.2 and another witness. 13. In the cross-examination, P.W.2 has admitted that he does not know anything about the intimation given by the informer. Even the Head Constable did not say about the intimation received by him and the Head Constable, P.W.4 had asked one Pandiammal to be a witness to search the female accused, but he did not know whether the Head Constable had asked any other person to be witnesses. According to P.W.2, the appellants / women accused were personally searched by the said Pandiammal, after getting their consent, but strangely P.W.2 has stated that he did not know the address of the said Pandiammal. He has admitted in his cross-examination that Exs.P.10 to P.12, consent letters were prepared by him, wherein for the appellants, Meenakshi and Mayakkal, their left hand thumb impressions were obtained and for the appellant, Mayila, her signature was obtained. In all these exhibits signature of alleged Pandiammal is available, even without the address and other details about her. As per the prosecution case, the said Pandiammal had searched the appellants / women accused, however, for the reasons best known to the prosecution, the address of the said Pandiammal has not been stated in the documents. Even the name of her husband or father has not been stated in the documents and the said Pandiammal was not examined as one of the prosecution witnesses. Even the name of her husband or father has not been stated in the documents and the said Pandiammal was not examined as one of the prosecution witnesses. Learned counsel for the appellants submitted that the alleged Padiammal is a fictitious person and to suit the convenience of the prosecution case, some signature in the name of one Pandiammal has been put, otherwise, at least her address could have been given in the documents. 14. Learned counsel appearing for the appellants / accused submitted that Exs.P.10 to P.12 were prepared for the purpose of this case. Though the scene of occurrence is said to be a public place and the occurrence is said to have taken place in the morning hours, no independent witness was cited by the prosecution. Though P.W.2, Grade I Constable and P.W.4, Head Constable have stated that the appellants were personally searched by a woman, by name Pandiammal, the alleged Pandiammal was not even examined as a prosecution witness. Even in the aforesaid documents, her address has not been stated and therefore, the arguments of the learned counsel for the appellants / accused is that the name of Pandiammal has been stated by prosecution only for the purpose of this case, without any details is acceptable. 15. The case is being prosecuted by the Inspector of Police, NIB CID, Madurai, search was conducted by a Head Constable, for the reasons best known to them, the mandatory provisions under Section 50 (4) of NDPS Act was not followed. As per the provision, no female shall be searched by anyone excepting a female. The respondent has stated that the women accused, who are the appellants herein were searched by Pandiammal, without examining the alleged Pandiammal, as one of the prosecution witnesses and even without furnishing her address in Exs.P.10 to P.12, the prosecution has failed to establish the factum of search and seizure of contraband. 16. It is not in dispute that compliance of Section 50 (4) of NDPS Act is mandatory, as the appellants / accused are female accused. Admittedly, there was personal search of female accused, hence, they could have been searched only by a female person. 17. Even as per the prosecution case, it is an informative search. 16. It is not in dispute that compliance of Section 50 (4) of NDPS Act is mandatory, as the appellants / accused are female accused. Admittedly, there was personal search of female accused, hence, they could have been searched only by a female person. 17. Even as per the prosecution case, it is an informative search. P.W.4, Head Constable has categorically stated that he had received intimation from an informer and that was reduced into writing and the same was sent to the Inspector of Police. As it was an informative search, at least, a woman constable could have accompanied the team. As per Section 50 (4) of NDPS Act, the appellants / female accused could have been searched only by a female member. The non-examination of the alleged Pandiammal and the non-availability of the name of her husband or father and her address would clearly show that the respondent / prosecution has not followed the mandatory provision, under Section 50 (4) of the Act, in order to establish the search and seizure of the contraband. 18. P.W.4, Head Constable has categorically admitted in his cross-examination that he did not take steps to go to the scene of occurrence with any woman constable or any other female person. The defence is that he had gone urgently to the scene of occurrence, hence, he could not took steps to make arrangements to accompany a woman in the squad. The aforesaid explanation is not satisfactory to prove the guilt of the female accused beyond reasonable doubt. 19. Learned counsel appearing for the appellants / accused further stated that there is no evidence to show that the alleged information was reduced into writing and sent by P.W.4 to his immediate superior officer and got permission to proceed to the scene of occurrence. Except the oral evidence of P.W.4, there is no other evidence available that the intimation was reduced into writing and sent to his immediate superior officer. P.W.4 has stated that he does not no whether one of the female accused was handicapped or not and according to him, he was present at the scene of occurrence for about 1.15 hours for preparing the mahazar and taking out sample and then he went to the police station along with the accused, seized contraband and the police party. 20. 20. In the aforesaid circumstances, P.W.4 could have stated specifically whether there was any handicapped persons among three accused or not. His reply that he did not know whether one of the female accused was a handicapped person, making his evidence doubtful. P.W.2 has also adduced similar evidence. 21. Learned counsel appearing for the appellants / accused submitted that as the appellants / accused, were acquitted in some other case, the present case has been foisted against them and that is the reason for the vital contradictions and non-compliance of mandatory provisions under the NDPS Act, though it is an informative search and seizure. As per the prosecution case, no independent witness was examined by the prosecution. In order to establish the search and seizure, Grade I Constable, P.W.2 and Head Constable P.W.4 were alone examined, however, their evidence is self-contradictory. Though the appellants are female accused and as per the prosecution case, they were personally searched by a female person, by name Pandiammal. As discussed earlier, the said Pandiammal was not examined, even the address and other details of the said Pandiammal were not given in the documents. 22. The Court below, without considering the violation of the mandatory provisions under Section 50 (4) of NDPS Act, ha found that the guilt is proved beyond reasonable doubt. However, this Court is unable to accept the view taken by the Court below, on account of the non-compliance of the mandatory provisions under NDPS Act and the vital self-contradiction of the prosecution witnesses. 23. On the aforesaid facts and circumstances, giving benefit of doubt in favour of the appellants / accused, I hold that the prosecution has not proved the guilt against the appellants / accused beyond reasonable doubt, so as to convict them under Section 8 (c) r/w 20 (b) (ii) (B) of the NDPS Act. 24. In the result, all the Criminal Appeals Nos.126 of 2004, 170 of 2004 and 276 of 2004 are allowed and the impugned conviction and sentence imposed by the Judgment, dated 30.09.2004 made in C.C.No.829 of 2001 on the file of the Special District and Sessions Judge for E.C.Act and N.D.P.S Act, cases, Madurai are set aside. If there is any fine amount paid by the appellants / accused, the same shall be refunded forthwith. The bail bond executed by the appellants / accused shall stand cancelled.