JUDGMENT 1. - These appeals have been preferred against the judgment dated 19.5.2007 passed by the Special Judge, NDPS Act Cases, Kota in Special Sessions Case No. 2/2004, whereby the appellants have been convicted as under: Appellant-Jaswant Singh under section 8/18 of NDPS Act. Ten years RI with fine of Rs. 1 lac and in default of payment of fine to further undergo two years simple imprisonment Appellants-Shrichand and Ramkaran under section 8/29 read with section 8/18 of NDPS Act. Ten years RI with fine of Rs. 1 lac and in default of payment of fine to further undergo two years simple imprisonment Two co-accused persons namely Deep Chand and Sitaram have been acquitted. 2. S.B. Criminal Appeal No. 1447/2007, 1446/2007, 1411/2007 have been preferred against above conviction by the accused appellants whereas S.B.Criminal Appeal No. 827/2008 filed by Union of India against the acquittal of respondents Deepchand and Sitaram. 3. As all the appeals arise out of the common judgment, thus, these appeals have also been decided by this common judgment. 4. The short facts of the case are that on 27.9.2003, the Preventive Force of Central Narcotics Bureau, Kota was constituted under the leadership of Banwari Lal Chhipa for prevention of smuggling and checking. The Preventive Force reached at 10.20 am at Anantpura Petrol Pump, where they found a jeep was coming towards Kota from Jhalawar. Two persons were sitting in the Jeep. On suspicion, the Car no. HR 41 7010 was intercepted. Two independent witnesses were called. Both the persons were inquired. The driver of the vehicle disclosed his name as Jaswant Singh and other disclosed his name as Ashok Kumar (who being a juvenile, faced trial before the Juvenile Justice Board). After compliance of the mandatory provisions of the Act, search has been made under the chamber of car, opium weighing 12 kg and heroin weighing 40 grams were found. Samples were taken as per the requirement. An FIR No. 3/2003 was registered. The statements of Jaswant Singh and Ashok Kumar have been recorded under 67 of the NDPS Act in which they further disclosed the names of other co-accused persons as Ramkaran, Shrichand, Deepchand and Sita Ram. It was also investigated that Shrichand is the owner of the Car which he has purchased from Harnam Singh whereas Ramkaran sold the contraband to Shrichand and Deep Chand and Sitaram were also involved in the conspiracy. It was also investigated that Shrichand is the owner of the Car which he has purchased from Harnam Singh whereas Ramkaran sold the contraband to Shrichand and Deep Chand and Sitaram were also involved in the conspiracy. After investigation, charge-sheet has been filed against five persons. In the course of proceedings, the learned court below has framed charges against all the appellants. Charges were denied. In support of prosecution case, 10 witnesses have been examined. Accused appellants and other co-accused were examined under section 313 Cr.P.C. No defence witness has been produced. After trial, the appellants have been convicted and sentenced as stated above. Hence this appeal. 5. Heard learned counsel for the parties and perused the record. 6. The contention of the appellant-Jaswant Singh is that he was implicated falsely. He is innocent. Provision of section 50 of the NDPS Act has not been complied with and samples have not been sent intact to Forensic Science Laboratory. 7. Per contra, contention of learned Public Prosecutor is that provision of section 50 of the NDPS Act has been complied. In spite of the fact, that compliance of the same was not necessary. The present appellant has not been searched personally but only vehicle has been searched and furthermore his contention is that samples have been sent to the Forensic Science Laboratory intact. Hence, there is no infirmity in the conviction and sentence of the present appellant Jaswant Singh. 8. PW-2 Aizaz Ahmed has stated that notice of section 50 of NDPS Act was given to the present appellant and it was also informed to him that he has legal right to be searched before the gazetted officer or before the Magistrate. Notice has also been placed on record. The case of the prosecution is that the contraband has been recovered from the vehicle and no personal search has been made of the present appellant. In view of the fact that there was no occasion to comply with provision of section 50 of the NDPS Act. Reliance has been placed on 2003 (7) SCC 465, Madan Lal and another v. State of H.P. , Where it has been categorically held that Section 50 applies only in case of personal search of a person and it does not extend to search of vehicle or a container or a bag. Reliance has been placed on 2003 (7) SCC 465, Madan Lal and another v. State of H.P. , Where it has been categorically held that Section 50 applies only in case of personal search of a person and it does not extend to search of vehicle or a container or a bag. Hence, the contention of the present appellant regarding non compliance of section 50 is baseless. 9. Other contention of the present appellant is that the provision of section 42 has not been complied with. The same analogy applies on it, only vehicle has been searched, there was no occasion for the seizure officer to comply provisions of section 42 of the Act and reliance has been placed on 2002 Cr.L. R (SC) 892, Narayanswamy Ravishankar v. Asstt. Director, Directorate of Revenue . 10. The other contention of the appellant is that sample has not been reached to the laboratory intact. PW-1 Shri BL Chhipa has used his personal brass seal to seal the packet and brass seal was remained with PW-1 thereafter also hence tampering with the samples could not be ruled out. PW-2 Aizaz Ahmed has stated that samples were sealed at the spot and samples along with remaining contraband has been deposited in the Malkhana and entries in the Malkhana Register have also been placed as Ex. P-21. Malkhana in charge and other link evidence have also been produced by the prosecution. Report of the laboratory of the Government Opium and Alkalide Factory, Neemach Ex.P-29 has been placed on record which gives positive test for the contraband and it has been specifically mentioned in Ex. 29 that samples found intact and they tallied specimen seal hence there is no missing link in the prosecution evidence to prove the fact that seized samples were reached FSL in intact position there is no infirmity in the conclusion and reasoning arrived at by the court blow qua the appellant Jaswant Singh. 11. The contention of the appellant-Srichand is that nothing has been recovered from his possession. He has been implicated on the fact that he is owner of the impugned vehicle. Admittedly Harnam Singh was the registered owner of the vehicle but he has not been produced. The Mediator Dhyan Singh was not produced. 11. The contention of the appellant-Srichand is that nothing has been recovered from his possession. He has been implicated on the fact that he is owner of the impugned vehicle. Admittedly Harnam Singh was the registered owner of the vehicle but he has not been produced. The Mediator Dhyan Singh was not produced. Other connected evidence and the call details have been produced against him but witnesses who have testified the fact of the call detail.PW-8 Ram Kishan PW-9 Pawan Kumar and PW-10 Radhakishan have not supported the prosecution story and have turned hostile. Other contention of the appellant Shrichand is that statements recorded under section 67 of the NDPS Act Ashok Kumar, Jaswant Singh and his own have been relied upon to base his confession but confession is a very weak type of evidence, can not be made sole basis of the conviction. Prosecution evidence is unreliable. Independent witnesses Girraj has not been produced to prove the fact of admission under section 67 of NDPS Act. 12. Per contra, the contention of the learned Public Prosecutor is that Ashok Kumar, Jaswant Singh and Srichand have narrated the whole story to PW 2 Aizaz Ahmed, their statements have been reduced in writing. The statements have never been retracted even in statement under section 313 Cr.P.C., nothing has been stated about statement recorded under section 67 of the NDPS. The seizure officer has also corroborated the confessional statement of accused and on this alone, conviction can be maintained. 13. The story of the prosecution that Shrichand has handed the contraband to Ahsok Kumar and Jaswant Singh. It is true that no contraband has been recovered from the possession of the Srichand. He has been named during investigation in the statement of accused Ashok Kumar and Jaswant Singh. Both have specifically stated that Srichand has handed over the contraband to them and the statements of Ashok Kumar and Jaswant Singh have been further corroborated by the present appellant himself and all the three persons have never retracted from their previous statements, even under section 313 of Cr.P.C. nothing has been alleged against the statements. The contention of the present appellant is that he was in custody, Ashok Kumar Jaswant Singh were also detained,hence the statement were not given under free will the appeal should be allowed. The contention of the present appellant is that he was in custody, Ashok Kumar Jaswant Singh were also detained,hence the statement were not given under free will the appeal should be allowed. But the contention of learned Public Prosecutor is that in confessional statements, accused has clearly confessed his guilt and there is no retraction of confession and further statement has been corroborated by the inspector of seizure officer and reliance has been placed on 2009(1) Cr.L.R. (Raj.) 547, Jawahar Singh and Anr. v. Central Bureau of Narcotics , 2008 (8) SCC 313 Union of India v. Satrohan , 2008(4) SCC 668 , Kanhaiyalal v. Union of India , 2000 Cr.L. R. (SC) 38, Kalema Tumba v. State of Maharashtra & Anr. wherein it has been categorically held that if the statements are recorded at the time when person making the statement had not been made an accused in connection with the alleged offence, no retraction has been made and inspector has corroborated the confessional statements having been made voluntarily by the accused this can be made a basis of conviction. 14. Here in the present case, court below has considered the totality of the circumstances that Ashok Kumar and Jaswant Singh have named the present appellant Srichand and thereafter Srichand has also stated about whole story in his statement under section 67 of the NDPS Act, no fault can be found in the reasoning and conclusion of the court below. 15. The other basis against Srichand is that he is the owner of the said vehicle. It is true that Harnam Singh was registered owner and contention of the prosecution is that he has soled the vehicle to present appellant. Harnam Singh has not been produced as died and even the Mediator Dhyan Singh has not been produced as he gone to abroad but in the statement under section 67 NDPS Act Srichand has made confessional statement about possession and ownership of the vehicle and this fact has not been ever resiled by the present appellant, hence reliance has rightly been placed on the above facts.Further it has been stated by the prosecution that call details Ex.41 to 43 also connect the present appellant with the crime but PW-8 Ram Kishan, PW-9 Pawan Kumar and PW-10 Radhakishan who are relevant witnesses to prove these call details, all have turned hostile. Furthermore, the Jaswant Singh, Ashok Kumar and Srichand even the Ramkaran are not having any phones in their name. Admittedly, telephone no. 0171-3201986 stands in the name of Krishan Kumar who is son of the Srichand hence on the basis of call details present appellant Srichand and Ramkaran could not be connected with the crime. The court below has rightly considered the various facts available on the record and on the basis of evidence recorded under section 67 of the NDPS Act, present appellant Srichand has rightly been convicted and punished.As regard appellant Ramkaran, the contention of the appellant is similar to that of Srichand and further it was contended that he was in custody at the time of the making of statement u/section 67 of NDPS Act, and conviction cannot be based on it but as stated earlier that Ashok Kumar Jaswant Sigh and Srichand have narrated the whole story and even Ram Karan has stated under section 67 of the Act. The other significant factor regarding Ramkaran is that the statements under section 67 of NDPS Act Ex. P80 are written in his own hand writing, hence any allegation of coercion is totally ruled out and Ramkaran has made confessional statement before he has been made accused in question with the alleged crime that statements are admissible and reliance has been placed on Kanhaiyalal's case (supra). Hence no fault could be found in the reasoning of the court below in convicting the appellants Jaswant Singh, Srichand and Ramkararan. The contention of the learned Public Prosecutor is that Deepchand and Sitaram has wrongly been acquitted as they had also made confessional statement before the authorities. It is true that confessional statement of Sitaram and Deepchand are there but the court below has rightly considered the fact that the accused Ashok Kumar has not named Deepchand and Sitaram. It has been alleged that Ashok Kumar was taken at the Dhaba of Deep Chand but admittedly at that time Deepchand was not found there and proceedings. Report of the same Ex.P-27 does not contain the signatures of Ashok Kumar. Hence, the prosecution story that Ashok Kumar has identified Deepchand is unreliable. No other accused has stated anything against Deepchand and only on the confessional statement of Deep Chand without any corroboration, the court below has rightly arrived at the conclusion of acquittal. On the same corollary, Sitaram has been acquitted. Hence, the prosecution story that Ashok Kumar has identified Deepchand is unreliable. No other accused has stated anything against Deepchand and only on the confessional statement of Deep Chand without any corroboration, the court below has rightly arrived at the conclusion of acquittal. On the same corollary, Sitaram has been acquitted. Ramkaran has not stated specifically against Sitaram only general allegation has been leveled that Sitaram is also involved in the conspiracy but in absence of specific confession and allegation, Sitarm has been rightly acquitted and it is well settled principle of criminal jurisprudence that presumption of innocence stands in favour of the accused unless he has been held guilty and this presumption further get fortified with the finding of acquittal by the court below. Hence there should be clinching evidence to reverse the finding of the acquittal. Here in the present case, no such evidence has been pointed out by the prosecution. There is no ground to interfere in the reasoning and conclusion arrived at by the court below quo the respondent Sitaram and Deepchand also.The appeals filed on behalf Shri Chand Sharma, Jaswant Singh and Ram Karan are liable to be dismissed and are accordingly dismissed and their conviction and sentence are maintained. The appeal filed by the Union of India is also liable to be dismissed and is dismissed accordingly.Appeal dismissed. *******