Judgment : 1. Heard Mr. Khan, learned Counsel appearing on behalf of the appellant and Mr. Rivankar, learned Public Prosecutor appearing on behalf of the respondent. 2. This appeal is filed by the accused of Special Criminal Case No. 12/2008 against the judgment, order and sentence dated 04-05/05/2009 passed by the learned Special Judge, Mapusa ('Trial Court') in the said case. The accused was tried for the offence punishable under Section 20 (b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act'). 3. Case of the prosecution was as under: Police Inspector Ashish Shirodkar (PW8), then attached to Anti Narcotic Cell Police Station, Panaji, Goa, on 05/02/2008, received an information to the effect that one male person of fair complexion, short height, strong built, wearing white coloured half sleeves shirt with brown strips and green coloured pant, aged about 30 to 35 years, will be coming near Petrol Pump Malpem, Pernem, Goa to deliver narcotic drugs i.e. charas to his prospective customers between 16.30 hours to 17.30 hours on the same day i.e. on 05/02/2008. The said information was reduced into writing and placed before the superior officer, Dy. S. P., ANC, Panaji, Shri Dinraj Govekar (PW5). The original information is at Exhibit 22. The Police Inspector (PW8), then, arranged for two pancha witnesses, one of them being Vishwas Satardekar (PW4) and the other being Francisco Carvalho and they were informed about the information received. The police party along with panchas came to the spot and a trap was laid. At about 16.55 hours, a male person of similar description as mentioned in the information was found carrying Olive green coloured nylon bag walking from Pernem market side towards Malpem Petrol Pump. Since the information received by PW8 tallied with the description of the said person, he was surrounded by the members of raiding party. The accused was introduced to the members of the raiding party and was informed about the information received and the intention of the police officers to take his personal search and to search the olive green coloured nylon bag carried by him. The accused was also informed about his right to be searched in the presence of Gazetted Officer or a Magistrate, but the accused declined to avail of such opportunity and hence, PW8 continued with his investigation. The accused was also informed about his right to be searched in the presence of Gazetted Officer or a Magistrate, but the accused declined to avail of such opportunity and hence, PW8 continued with his investigation. Upon search of the said bag, it was found containing some black coloured sticky substance in rectangular shape auto press transparent polythene packets of size 5 x 4 inches approximately. After counting the said packets they were found to be 180 in number and on verifying and smelling the contents of the said packets, it was found and informed to the panchas and members of the raiding party that the said black coloured sticky substance was suspected to be charas. All the said auto pressed transparent packets were weighed and found to be weighing 18.055 Kilograms (Kgs.). PW8 then checked other four side compartments on each side, but nothing was found. The bag was then repacked as it was found earlier and the said bag along with suspected charas was wrapped in white cloth and tied with jute thread. A label mentioning details was prepared and stuck to the said cloth and sealed on 7 places with the seal of Anti Narcotic Cell Panaji, Goa- I with Ashoka emblem. The said label was signed by the panchas, by PW8 and by the accused. During personal search of the accused, one mobile phone Nokia-1110 of grey-white in colour was found in the front left shirt pocket and the same was also seized in the panchanama. The accused along with the seized property was taken into custody and panchanama and seizure report were drawn and copies of the same were supplied to the accused and the accused put his signature in token of having received the same. This search panchanama is at Exhibit 19 and the seizure report is at Exhibit 20. A letter to the Director, Food and Drugs Administration (FDA) was prepared and sent and the seal impression of Anti Narcotic Cell, Panaji, Goa-I with Ashoka emblem was affixed on that letter. After completion of sealing formalities, the seal of Anti Narcotic Cell, Panaji, Goa-I with Ashoka Emblem was sent with Police Constable buckle no. 5496 namely Ramchandra Kankonkar (PW6) along with covering letter addressed to PW5 to hand over the same to PW5, for his safe custody. After completion of sealing formalities, the seal of Anti Narcotic Cell, Panaji, Goa-I with Ashoka Emblem was sent with Police Constable buckle no. 5496 namely Ramchandra Kankonkar (PW6) along with covering letter addressed to PW5 to hand over the same to PW5, for his safe custody. The accused and the seized articles were brought to the Anti Narcotic Cell Police Station, Panaji, Goa for further investigation. The Muddemal property concerned in the crime was handed over to Writer L.H.C. Smt. Ashwini Dessai (PW7) under her acknowledgment letter for safe custody. During the course of investigation, the statements of witnesses came to be recorded. PW2, Sushant Naik, the Scientific Assistant received the sealed cloth parcel containing charas from PW6 and he forwarded the same to the office of the Director of FDA, for chemical analysis. Shri Mahesh Kaisare (PW1), the senior Scientific Officer, carried out analysis and certified that the said substances contained charas. The analytical report is at Exhibit 9. PW3, Gaurish Mapari, the Scientific Assistant, received the examination report from the Director of FDA along with sealed cloth parcel containing the balance quantity of the substances. On completion of investigation, charge sheet was filed against the accused before the learned Special Judge for offence punishable under Section 20(b)(ii)(C) of NDPS Act. 4. Charge was accordingly framed by the Trial Court and explained to the accused who pleaded not guilty and claimed to be tried. The prosecution examined above named eight witnesses and produced on record various documents and the articles. The statement of the accused under Section 313 of the Code of Criminal Procedure (Cr.P.C.) came to be recorded. Case of the accused was of denial and he did not examine any witness in defence. 5. Upon appreciation of the entire evidence on record, the learned Trial Court held the accused guilty and convicted him of the offence punishable under Section 20(b)(ii)(C) of the NDPS Act and sentenced him to suffer Rigorous Imprisonment for a term of 10 years and to pay a fine of Rs. 1.00,000/-, in default to suffer Rigorous Imprisonment for further period of six months. Aggrieved by the said judgment and order of conviction and sentence, dated 05/05/2009, the accused has filed the present appeal. 6. During the course of arguments, Mr. 1.00,000/-, in default to suffer Rigorous Imprisonment for further period of six months. Aggrieved by the said judgment and order of conviction and sentence, dated 05/05/2009, the accused has filed the present appeal. 6. During the course of arguments, Mr. Khan, learned Counsel appearing on behalf of the accused, firstly, pointed out that the complainant himself i.e. Police Inspector Shri Ashish Shirodkar (PW8), who had received the information and had conducted the raid, investigated the case and filed the charge sheet. This, according to learned Counsel, was bad and vitiates the conviction. In this regard, the learned Counsel relied upon the following cases : (i) Gyan Chand Vs. State of Rajasthan, [1993 Cri. L. J. 3716] (ii) Megha Singh Vs. State of Haryana, [ AIR 1995 SC 2339 ]. (iii) Naushad Vs. State of Kerala, [2000(3) Crimes 15] 7. In the case of “Gyan Chand” (supra), a learned Single Judge of Rajasthan High Court found that the case was registered by PW6, Pratap Singh, on the basis of source information. PW6 himself had gone for the search, had effected the recovery, had seized the opium and had investigated the whole case, throughout. The High Court observed that such a course of action militates against the basic tenets of jurisprudence and fair investigation. It has been held that such an investigation is not fair and the Inspector is not a proper authority to investigate as his status is the same as that of a complainant. It was held that, therefore, the conviction of the accused in such circumstances, is liable to be set aside. 8. In the case of “Megha Singh” (supra), the Hon'ble Supreme Court has observed that PW3, Shri Siri Chand, Head Constable arrested the accused and on search being conducted by him, a pistol and cartridges were recovered from the accused and it was on his complaint that a primary first information report was lodged and the case was initiated. The Apex Court held that PW3 being the complainant should not have proceeded with the investigation of the case, but it appears that he was not only the complainant in the case, but he carried on with the investigation and examined the witnesses under Section 161 of Cr.P.C. and such practice should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation. Because of the above and since there was discrepancy in the depositions of the PWs 2 and 3 and in the absence of any independent corroboration, such discrepancy did not inspire confidence about the reliability of the prosecution case, the Hon'ble Supreme Court allowed the appeal and set aside the conviction of the appellant. 9. In the case of “Naushad” (supra), a learned Single Judge of Kerala High Court relied upon the case of “Megha Singh” (supra); “Gyan Chand” (supra); and “Xavier Vs. State of Kerala”, [ 1998 (1) KLT 686 ] and held that PW11 alone can be categorized as the complainant and Investigating Officer in the case and this could not be approved by the Court of law as held in the aforesaid decisions. The learned Single Judge of Kerala High Court held that when that be the situation, the conviction cannot be said to be fair and it is not in accordance with the settled propositions of law and has to be invalidated. 10. In the present case, the information was received by PW8, who was the officer-in-charge of Anti Narcotic Cell Police Station, Panaji. A copy of the said information is at Exhibit 22. He reduced the said information in writing and forwarded a copy of the same to Dy.S.P. Dinraj Govekar (PW5). PW8 himself secured the presence of two pancha witnesses and along with other police personnel, proceeded to the spot. PW8 apprehended the accused and conducted the personal search of the accused. PW8 drew the panchanama which is at Exhibit 19 and took the accused in custody. He prepared the seizure report which is at Exhibit 20. PW8 himself filed the complaint, registered an offence under Crime No. 5/2008 against the accused for illegally possessing commercial quantity of charas. The said complaint is at exhibit 39. PW8 recorded the statements of raiding party members. He sent the said charas for chemical analysis and after receiving the report certifying that the substance is charas and balance quantity, he filed the charge sheet against the accused. Thus, the entire process, starting from receipt of information to the filing of the charge sheet before the Special Court, was done by PW8, the Investigating Officer. The question is whether the above action of PW8 is fatal to the prosecution case. Thus, the entire process, starting from receipt of information to the filing of the charge sheet before the Special Court, was done by PW8, the Investigating Officer. The question is whether the above action of PW8 is fatal to the prosecution case. As has been held by the Hon'ble Supreme Court in the case of “Megha Singh” (supra), such practice ought not to have been resorted to since that gives occasion to suspect fair and impartial investigation. It is the contention of the learned Public Prosecutor, and rightly so, that in the present case, the accused has not claimed any prejudice caused to him on account of investigation being carried out by the complainant himself. He further submitted that there is no rule that if the complainant himself, who is a Police Officer, conducts the entire investigation and files charge sheet, the same should be held to be illegal. He submitted that at the most, suspicion could have been been created in the matter, but, in the present case, there was no scope for any suspicion. It should be kept in mind that PW8 was in-charge of Anti narcotic Police Station, Panaji which had jurisdiction all over the State of Goa, regarding the narcotic drugs and psychotropic substances. I agree with the above submission made by the learned Public Prosecutor, since the Hon'ble Supreme Court in the case of “Megha Singh” (supra) has not held that such a practice is fatal to the case of the prosecution. What has been held is that such practice should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation. In the present case, the learned Counsel for the accused has failed to show that there was no fair and impartial investigation. He also could not show any prejudice caused to the accused on account of PW8 himself having conducted the investigation and filed the charge-sheet. Thus, on this ground, alone, the accused cannot be acquitted. 11. It was next submitted by the learned Counsel appearing on behalf of the accused that there was total non-compliance of Section 42 of the NDPS Act, whereas it was contended by the learned Public Prosecutor that Section 42 of the NDPS Act was not applicable and that it was Section 43 which was applicable, in spite of which the provision of Section 42 was complied with. Section 42 of the NDPS Act gives power to an officer mentioned in the said Section of entry, search, seizure and arrest without warrant or authorisation whereas Section 43 gives power of seizure and arrest in public place. (A). Section 42 reads as under : “42. Section 42 of the NDPS Act gives power to an officer mentioned in the said Section of entry, search, seizure and arrest without warrant or authorisation whereas Section 43 gives power of seizure and arrest in public place. (A). Section 42 reads as under : “42. Power of entry, search, seizure and arrest without warrant or authorisation.- (l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, 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-- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under subsection (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.” (B). Section 43 of the NDPS Act lays down as under: “43. Power of seizure and arrest in public place:- Any officer of any of the departments mentioned in Section 42 may-. (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act 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; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.- For the purposesof this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public. 12. The learned Counsel, appearing on behalf of the accused, submitted that in the present case the documentary evidence and more particularly the station diary entries at serial nos. 16 and 19 in the extract of the station diary at Exhibit 40 did not establish that PW8 had sent the copy of the original information to his immediate official superior or that the same was received by the said superior official. He further submitted that the fact that the accused had Nepali features was not recorded by PW8 in the said information reduced in writing and hence the record was incomplete. Learned Counsel urged that the provision of Section 42 of the NDPS Act is mandatory and its non-compliance is fatal to the prosecution. He further submitted that the fact that the accused had Nepali features was not recorded by PW8 in the said information reduced in writing and hence the record was incomplete. Learned Counsel urged that the provision of Section 42 of the NDPS Act is mandatory and its non-compliance is fatal to the prosecution. He, therefore, contended that there was no substantial compliance with Section 42 of the Act. He also submitted that in view of Section 51 of the NDPS Act, Section 165 of the Criminal Procedure Code was applicable to all searches and seizures and the same required the officer conducting the search to record grounds of his belief and specify in such writing the things for which search was to be made. According to learned counsel, the provision of section 165 is mandatory but had not been complied with. Learned Counsel appearing on behalf of the accused further submitted that as per the information at Exhibit 22 which was received at 12.55 hours by PW8 on 05/02/2008, the informer had given the colour of the clothes which will be on the person of the accused at 16.30 to 17.30 hours. He submitted that this cannot be believed. In support of each contention, learned counsel relied upon: (i) “K. L. Subhayya Vs. State of Karnataka” ( AIR 1979 SC 711 ); (ii) “State of Punjab Vs. Balbir Singh” (1994 Cri. L. J. 3702); (iii) “Fulkumar Suratsingh Sigrahwa Vs. The State of Maharashtra” (2004 Cri. L. J. 4726); (iv) “State of Rajasthan Vs. Rehman“ ( AIR 1960 SC 210 ); and (v) “Mithu khan Vs. The State of Rajasthan” ( AIR 1969 Raj 121 ). According to Mr. Khan, learned Counsel appearing on behalf of the accused, Section 42 of the NDPS Act is also applicable to a raid or search conducted in any public place. In this regard, he relied upon the judgment of the Full Bench of this Court in the case of Jayantilal Modi and another Vs. State of Maharashtra, [2001 All M. R. (Cri.) 601]. 13. In this regard, he relied upon the judgment of the Full Bench of this Court in the case of Jayantilal Modi and another Vs. State of Maharashtra, [2001 All M. R. (Cri.) 601]. 13. In the case of “Jayantilal Modi” (supra), the Full Bench of this Court has held that in respect of an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985, it is necessary for the empowered officer to comply with the provisions of Section 42 even when the information received by him is regarding the commission of an offence in a public place of the like mentioned in explanation to Section 43. 14. On the contrary, it was contended by the learned Public Prosecutor that the accused in the present case was apprehended near the petrol pump and thus, he was not arrested from any building, conveyance or an enclosed place. He, therefore, submitted that Section 42 of NDPS Act was not applicable to the present case and that it was Section 43 which was applicable and which does not require sending of any information as mentioned in sub-section (1) of Section 42 to the immediate superior official. Learned Public Prosecutor submitted that the learned Special Court has rightly considered this aspect. 15. Learned Trial Court, while considering the question of sections 42 and 43 of the NDPS Act, referred to various judgments and found that the observations of the Hon'ble supreme Court in paragraph 6 in the case of “Ravindran alias John Vs. Superintendent of Customs” ( AIR 2007 SC 2040 ), wherein the aspect of applicability of Sections 42 and 43 of the NDPS Act has been discussed, were very material. In paragraph 6 of the judgment supra, the Apex Court has observed thus:- “6. We hold that the High Court was right in coming to the conclusion that Section 42 of the Act was not attracted to the facts of this case. In the instant case on information received by PW-2 who communicated the same to PW-1, the witnesses went to the bus stand where the person carrying the drug was expected to arrive. The appellant was arrested at the bus stand. The appellant was, therefore, not searched and arrested in exercise of power of arrest, search, and seizure under Section 42 of the Act. The appellant was arrested at the bus stand. The appellant was, therefore, not searched and arrested in exercise of power of arrest, search, and seizure under Section 42 of the Act. Section 42 applies to a case where the officers concerned on information received, or having reason to believe from personal knowledge that any offence has been committed in relation to any drug or psychotropic substance etc. and which is kept or concealed in any building, conveyance or enclosed place may, between sunrise and sunset, enter into and search any building, conveyance or place. They are also vested with the power of search and seizure and authorized to arrest the person whom they have reason to believe to have committed any offence punishable under this Act. The facts of this case disclose that the arrest and seizure took place at the bus stand and not in any building, conveyance or enclosed place. The High Court has rightly held that the case was covered by Section 43 of the Act which does not require the information of any person to be taken down in writing. Similarly, there is no requirement that the concerned officer must send a copy thereof to his immediate official superior within 72 hours. We, therefore, hold in agreement with the High Court that Section 42 of the Act was not attracted to the facts of the case. It is, therefore, unnecessary to burden this judgment with decisions cited at the Bar regarding the effect of non-compliance with Section 42 of the Act” 16. In view of the above Judgment of the Hon'ble supreme Court, in the case of “Ravindra alias John” (supra), I am unable to place reliance upon the judgment in the case of “Jayantilal Modi and another“ (supra), for the purpose for which it has been relied upon by the learned Counsel for the accused. In terms of Section 51 of Cr.P.C., the provisions of Cr.P.C. apply, insofar as they are not inconsistent with the provisions of NDPS Act, to all warrants issued and arrests, searches and seizures made under the NDPS Act. Section 165 of CR.P.C. is consistent with Section 42 of the NDPS Act but not with Section 43. Since Section 42 of NDPS Act is not applicable, Section 165 of Cr.P.C. is also not applicable. Section 165 of CR.P.C. is consistent with Section 42 of the NDPS Act but not with Section 43. Since Section 42 of NDPS Act is not applicable, Section 165 of Cr.P.C. is also not applicable. The judgments relied upon by the learned counsel pertain to section 42 of the NDPS Act or Section 165 of Cr.P.C. and thus are not applicable to the present case. Be that as it may, the entries at serial nos. 16 and 19 of the station diary dated 05/02/2008, the extract of which is at Exhibit 40, read with the evidence of PW8, the investigating officer who received the information and sent the same to the immediate superior official and PW5, the said immediate superior official, who received the same, duly prove that the provision of Section 42 of NDPS Act, even if it was applicable, was complied with. There is no force in the contentions of the learned Counsel for the accused, with regard to the alleged non-compliance of the provision of Section 42 of the NDPS Act. 17. It is the next contention of the learned Counsel for the accused that there is non-compliance of Section 50 of the NDPS Act. Section 50 lays down as under: “50. Conditions under which search of persons shall be conducted.- (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973. (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy two hours send a copy thereof to his immediate official superior.” 18. Learned Counsel for the accused submitted that the bag in which the contraband was allegedly found was in actual possession and control of the accused and hence the provisions of section 50 of NDPS Act had to be strictly followed. He relied upon the Judgment of the Full Bench of this Court in the case of “Ebanezer Adebaya @ Manday Obtor Vs. The State of Maharashtra,” [1996(2) ALL M.R. (Cri) 402], wherein it has been held that the phrase ”to search any person” used in Section 50 of the NDPS Act includes search of articles in immediate possession such as bag and other luggage carried by him or physical possession of the person to be searched. According to learned counsel for the accused, the said Judgment in the case of “Ebanezer Adebaya @ Manday Obtor” (supra) has been considered in the case of “Venugopal Raj Reddy and Others Vs. The State of Maharashtra” [2006 ALL M. R. (Cri.) 387] and that a similar view has also been taken in the case of “Siwaratri Venkataiah Vs. State of A.P.” [1997 ALL M.R. (Cri.) 1967]. He relied upon the judgment in the case of “Narcotic Central Bureau Vs. The State of Maharashtra” [2006 ALL M. R. (Cri.) 387] and that a similar view has also been taken in the case of “Siwaratri Venkataiah Vs. State of A.P.” [1997 ALL M.R. (Cri.) 1967]. He relied upon the judgment in the case of “Narcotic Central Bureau Vs. Sukh Raj Sodhi” [ 2011 ALL MR (Cri) 2356(S.C.)], wherein the Division Bench of the Hon'ble Supreme Court has held that the procedure under section 50 of NDPS Act is mandatory and merely informing the accused of his option to be searched before Gazetted Officer or before Magistrate is not sufficient and the accused must be actually produced before the Gazetted Officer or Magistrate. The above judgment in the case of “Sukh Raj Sodhi” (supra), however, cannot help the accused because in that case the accused wanted to be searched in the presence of Gazetted Officer, whereas in the present case the accused was informed of his right to be searched in the presence of Gazetted Officer or Magistrate, but he had declined to avail of such option. The judgment in the case of “Sukh Raj Sodhi” (supra) is based on the Judgment of the Constitutional Bench of the Supreme Court in the case of “Vijaysinh Chandubha Jadeja Vs. State of Gujarat”, [(2011) 1 SCC (Cri.) 497], wherein it has been held that the requirements of : (i) informing the suspected person of right under section 50 of NDPS Act and (ii) search in presence of Gazetted Officer or Magistrate, if so desired by the suspect, are mandatory. In the present case the accused was informed of his right under section 50 of the NDPS Act but he had declined to be searched in the presence of the Gazetted Officer or Magistrate. The Judgment of the Apex Court in the case of “Sukh Raj Sodhi“ (supra) cannot come to the rescue of the accused. 19. In the present case, the charas was not found on the person of the accused but in the bag which was carried by the accused. The learned Public Prosecutor submitted that a bag cannot be treated as body of a human being. He relied upon the Judgment of the Apex Court in the case of “State of Himachal Pradesh Vs. Pavan Kumar” (AIR 2005 SC 2256) and urged that Section 50 of NDPS Act is not applicable. The learned Public Prosecutor submitted that a bag cannot be treated as body of a human being. He relied upon the Judgment of the Apex Court in the case of “State of Himachal Pradesh Vs. Pavan Kumar” (AIR 2005 SC 2256) and urged that Section 50 of NDPS Act is not applicable. He further urged that even otherwise the accused was informed of his right under section 50 of the NDPS Act but the accused had denied such option. In the search panchanama (Exhibit 19) it has been recorded that PW8 told the accused that he has a right to be searched in the presence of a Gazetted Officer or a Magistrate but the accused declined. Accordingly, PW6, Ramchandra Kankonkar, the Constable then attached to ANC. P.S., Panaji, who was one of the members of the raiding party, and PW8, Ashish Shirodkar, the then Officer In-charge of ANC P.S., Panaji, who conducted the raid, both deposed that before commencing the search, P.I. Shirodkar told the accused that he has right to be searched in the presence of a Gazetted Officer or a Magistrate, however, the accused declined the same. PW4, Vishwas Satardekar, the pancha witness, however, did not state that the accused was informed that he has a right to be searched in the presence of a Gazetted Officer or a Magistrate but he stated that P.I. Shirodkar asked the accused whether he requires the presence of any Gazetted Officer or Magistrate at the time of conducting search, however, he replied in the negative. The learned Trial Court referred to various judgments of the Apex Court wherein the scope of Section 50 of the NDPS Act and the point as to what constitutes personal search under section 50 of the NDPS Act, has been considered. Learned Trial Court relied upon the judgment of the Apex court in the case of “Pavan Kumar” (supra), wherein it has been observed that the word 'person' would mean a human being with appropriate covering or clothing and also footwear but a bag, brief case or any such articles or container, etc., can, under no circumstances be treated as body of a human being. The Trial Court, thus, held that in view of the observations of the Apex Court in the case of “Pavan kumar” (supra), it was clear that section 50 of NDPS Act had no application whenever, the search of bag, brief case or any other articles carried by suspected person was conducted. The Trial Court also relied upon the case of “Babubhai Patel Vs. State of Gujarat” ( AIR 2006 SC 102 ). The Trial court held that since in the present case the contraband was recovered only during the search of the bag and nothing incriminating was recovered during the personal search of the accused, any irregularity during personal search will not affect the search. The learned Trial court found that even other wise there was compliance of the provision of Section 50 of the NDPS Act. The above findings of the Trial Court are absolutely correct and in accordance with law. The judgments of the High Courts in the case of “Ebanezer Adebaya @ Manday Obtor”; “Venugopal Raj Reddy and Others “ and “Siwaratri Venkataiah” (supra), in this respect, are not good judgments in view of the above Judgment of the Constitutional Bench of Hon'ble Supreme Court. There is no force in the contention of the learned counsel for the accused that the case of the prosecution fails due to non-compliance of Section 50 of the NDPS Act. 20. Another contention of the learned Counsel for the accused is that the provisions of sections 52 and 53 of NDPS have not been complied with. Section 52 pertains to disposal of persons arrested and articles seized whereas section 53 relates to power to invest officers of certain department with powers of an officer-in-charge of police station. (A) Section 52 of NDPS Act says as under: “52.- Disposal of persons arrested and articles seized.- (1) Any officer arresting a person under section 41, section 42 section 43 or section 44 shall, as soon as may be, inform him of the grounds for such arrest. (2) Every person arrested and article seized under warrant issued under subsection (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. (2) Every person arrested and article seized under warrant issued under subsection (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. (3) Every person arrested and article seized under sub-section (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to - (a) the officer-in-charge of the nearest police station, or (b) the officer empowered under section 53. (4) The authority or officer to whom any person or article is forwarded under sub-section (2) or subsection (3) shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article.” (B). Section 53 of the NDPS Act lays down as under: “53. Power to invest officers of certain departments with powers of an officer-in-charge of a police station.- (1) The Central Government, after consultation with the State Government, may, by notification published in the Official Gazette, invest any officer of the department of central excise, narcotics, customs, revenue intelligence [or any other department of the Central Government including para-military forces or armed forces] or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of the offences under this Act. (2) The State Government may, by notification published in the Official Gazette, invest any officer of the department of drugs control, revenue or excise [or any other department] or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of offences under this Act.” 21. Learned Counsel appearing on behalf of the accused submitted that since PW8, Ashish Shirodkar was officer-in-charge of ANC P.S. Panaji, he ought to have produced the accused after arrest before his superior officer like Dy.S.P., in terms of Section 52(3) of the NDPS Act. It was further contended by the learned Counsel for the accused that the seized muddemal property was not deposited with an independent superior officer and that it was deposited with Smt. Ashwini Desai (PW7) who was a Writer H.C. at the same police station of which the investigating officer (PW8) was In-charge. He therefore urged that PW7 was not an independent police officer. He therefore urged that PW7 was not an independent police officer. He further submitted that in terms of section 55 of the NDPS Act, an officer-in-charge of the police station has to take custody of the seized articles and should affix his seal to such articles. He further pointed out from section 57 of the NDPS Act that the arrest and seizure has to be reported in detail to the immediate official superior. In my considered view, since PW8, P.I. of ANC P.S. Panaji, was himself the In-charge of the said police station, the question of producing the accused before Dy. S.P. did not arise. 22. It is well settled that the steps to be taken after the search, seizure and arrest of the accused as contained in Sections 52 and 57 of the NDPS Act are not by themselves mandatory. Provisions of Sections 52 and 57 of the NDPS Act are directory in nature and non-compliance of them per se would not vitiate the trial unless some prejudice is shown to have caused to the accused. In the case of “State of Punjab Vs. Balbir Singh” (1994 Cri L. J. 3702), it has been held that the provisions of Sections 52, 55 and 57 of the NDPS Act are not mandatory in nature. In the present case, though PW7 was not the officer-in-charge of the ANC P. S., Panaji, however, she, as writer H.C., was given responsibility to keep the muddemal property, in proper custody and her oral evidence reveals that she performed her duty properly. There is sufficient evidence on record establishing that the parcel containing the seized charas was sealed at the spot itself and such seals were found intact by the Chemical Analyser as well as by the Scientific Assistants working with the office of S.P. C.I.D.. The evidence on record duly proves that the sealed parcel was kept in safe custody during the intervening period and the seal was not available with the Investigating officer as the same was deposited with Dy.S.P.. The pancha witness, to the search panchanama and seizure report, has been examined as PW4 and he has proved the same. He is an independent respectable witness being called from the office of the Deputy Collector at Vasco, where he was working as L.D.C.. He had no reason to falsely implicate the accused. The pancha witness, to the search panchanama and seizure report, has been examined as PW4 and he has proved the same. He is an independent respectable witness being called from the office of the Deputy Collector at Vasco, where he was working as L.D.C.. He had no reason to falsely implicate the accused. Said Writer H.C, the Chemical Analyser and the Scientific Assistants have all been examined by the prosecution. The testimonies of all the witnesses of the prosecution were firm and not shaken in the cross-examination and were reliable. In the present case, learned Counsel for the accused has failed to show as to what prejudice was caused to the accused by alleged non-compliance of the provisions of section 52, 53, 55 and 57 of the NDPS Act. There is no force in the above objection raised by the learned Counsel for the accused. 23. Learned Counsel for the accused further submitted that the entry of seizure of articles is ten minutes prior to the raiding party reaching the police station. He pointed out from the muddemal register at Exhibit 24 that the articles were received at 9.15 p.m. on 05/02/2008, but as per the station diary entry no. 32, the raiding party returned at the ANC P.S., Panaji at 9.25 p.m. on 05/02/2008. He further pointed out from the station diary entry no. 34 that the muddemal property concerned in this case has been shown as handed over by P.I. Suraj Haldankar at 9.30 p.m. on 05/02/2008, but it is further stated to be relating to station diary entry no. 33, which pertains to some other case. He further pointed out from the complaint at exhibit 39 that though the Crime was registered under no. 05/08 at 9.50 p.m. on 05/02/2008, however, as per the letter of handing over the muddemal properties, which is at Exhibit 33, the muddemal property was received by PW7 at 9.30 p.m. on 05/02/2008 and at 9.30 p.m. itself, the crime number 05/08 was known. Learned Counsel further pointed out from the deposition of PW7 that she had sent the sealed parcel to the office of scientific Assistant along with forwarding letter on 06/02/2008. But as per the Proforma of Columns of Muddemal Register at Exhibit 34, the date of sending of the muddemal property along with the forwarding letter is mentioned as 05/02/2008. Learned Counsel further pointed out from the deposition of PW7 that she had sent the sealed parcel to the office of scientific Assistant along with forwarding letter on 06/02/2008. But as per the Proforma of Columns of Muddemal Register at Exhibit 34, the date of sending of the muddemal property along with the forwarding letter is mentioned as 05/02/2008. He therefore urged that there was manipulation of documents which rendered the case of the prosecution wholly untrustworthy. In this regard, learned Trial Court has found some explanation for the said discrepancies, which has been mentioned in paragraph 43 of the impugned judgment. In my view, the above discrepancies in recording details and timings are human mistakes which can occur due to haste and by inadvertence. The prosecution has not suppressed the said discrepancies. Explanations were not sought by the accused from the investigating Officer (PW8), during his deposition. The said discrepancies are not so major as to render the prosecution case unreliable. 24. Learned Counsel appearing on behalf of the accused submitted that in the present case according to PW6 and PW8, the substances, in the packets found in the bag which was with the accused, were black in colour, but according to PW1, the chemical analyser, what he received was dark brown coloured substances and that there is no explanation to such discrepancy. He further submitted that there is difference in the weight of the substances recorded by PW1 and by PW8 and that PW1 found the weight to be 18 kgs and 55 grams whereas PW1 found it to be only 18 kgs. He thus, urged that the possibility of tampering with the actual substances cannot be ruled out and the benefit of the same should go to the accused. He relied upon the case of “Rajesh Avasthi Vs. State of Goa,” [2006(1) SCC (Cri.) 150] and the case of “Assistant Director of Narcotics Control Bureau Eastern Zonal Unit, Calcutta Vs. Dipak Poddar”, (2008 Cri.L.J. 4520) and also other judgments on similar point. In the case of “Rajesh Avasthi” (supra), the difference in weight was significant and could not be described as a mere minor discrepancy. In the present case, the weight of the auto press transparent packets containing charas was found to be 18.055 kgs. But as per the analytical report (Exhibit 8) prepared by PW1 the weight of charas with auto press bags was 18.00 kgs. In the present case, the weight of the auto press transparent packets containing charas was found to be 18.055 kgs. But as per the analytical report (Exhibit 8) prepared by PW1 the weight of charas with auto press bags was 18.00 kgs. Nothing was asked to PW1, the expert, regarding the difference in weight, for him to offer any explanation. It must be kept in mind that the scale used in laboratory is more sensitive and hence there was possibility of difference in weight recorded by the Investigating Officer and by the analyser. The difference, even otherwise, was negligible being only of 55 grams. Insofar as the colour is concerned the discrepancy was not at all major since according to PW6 and PW8, the substance was black in colour whereas according to PW1 it was dark brown in colour. PW1, in his cross examination, has explained that though the substance was dark brown in colour, it looked like of black colour. Hence nothing turns out from the alleged discrepancy in the weight and colour of the substance. 25. Learned Counsel further contended that the tests required to conclude that the substances attached from the possession of the accused contained charas, were not carried out. He relied upon the judgment of Himachal Pradesh High Court in case of “Sunil Vs. State” [2010 (1) Drugs Cases (Narcotics) 63]. In the above case, it is observed that according to the definition of “charas” as given in Section 2(iii)(a) of the NDPS Act, the stuff to fall in the category of charas, should be resin of cannabis plant only or the concentrated preparation and resin known as hashish oil or liquid hashish and the definition does not include other parts like flowering and fruiting tops, leaves or stem, of cannabis plant. The flowering and fruiting tops of cannabis plant have been defined to mean ganja as per Section 2(iii)(b) of the NDPS Act and when seeds and leaves of the plant accompany such flowering or fruiting tops, they also form part of ganja. When charas, i.e. resin and/or ganja, i.e. flowering or fruiting tops of the cannabis plant, are mixed with or without any neutral material, they fall in the category of Mixure of cannabis (hemp), as defined in Section 2(iii)(c) of the NDPS Act. When charas, i.e. resin and/or ganja, i.e. flowering or fruiting tops of the cannabis plant, are mixed with or without any neutral material, they fall in the category of Mixure of cannabis (hemp), as defined in Section 2(iii)(c) of the NDPS Act. From the reports of chemical analyser, in the above case, it was clear that the stuff was opined to be charas, on account of presence of cannabinol, including tetrahydrocannabinol and cystolithic hair. However, it was found that the experts had not conducted any test to ascertain if the stuff was resin. In the present case as per the evidence of PW1, the chemical analyser, the substance had characteristic odour of charas. The microscopic examination showed presence of 'hair' resembling 'charas hair'. PW1 carried out three identification tests for charas namely: (i) Beam's Acid test; (ii) Negm's test; and (iii) Fast blue B salt test and all tests were positive for charas. In his deposition, PW1 has explained as to how those three tests were carried out and why they were positive for charas. In the cross examination of PW1 there is no suggestion that the tests carried out by PW1 were not conclusive. In fact, the conclusion of PW1 that the substance contained charas has not been denied. As per the analytical report, the entire substance contained charas. Nothing observed in the judgment of the learned Single judge of Himachal Pradesh in the case of “Sunil” (supra) had been brought to the notice of PW1 for him to explain the same, with reference to the present case. The case of “Sunil” (supra) is not applicable to the present case. 26. It was also contended by the learned Counsel for the accused that the panchas taken for the raid were not from the locality but were taken from the police station. Reliance has been placed on the judgment of the learned Division bench of this Court in the case of “Dnyneshwar L. Wankhede Vs. State of Maharashtra” [2005 ALL M.R. (Cri.) 2321], wherein it was observed that the prosecution had not explained as to why the police were required to take panchas from the police station and as to why there was no witness available from the vicinity in which the accused persons were roaming and that this fact further created doubts as regards veracity of the prosecution. In the case supra, there were several infirmities in the case of prosecution. In the present case, PW4, the pancha witness was working as L.D.C. in the office of Deputy Collector at Vasco and even the other pancha witness was working in the same office. The learned Deputy Collector had deputed these persons to attend ANC. P. S. to act as pancha witnesses, in view of a circular issued by the Government of Goa. Thus, the pancha witnesses were respectable Government servants. They were not professional witnesses or regular pancha witnesses for the police to use them, whenever wanted. There is no scope for doubts as regards veracity of the prosecution, in this regard. 27. There are presumptions in favour of the prosecution under Sections 35 and 54 of the NDPS Act, and the evidence on record establishes that the said presumptions could not be rebutted by the accused. The said presumptions are as follows:- (a). Section 35 of the NDPS Act lays down as under: “35. Presumption of culpable mental state – (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation.- In this section "culpable mental state" includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.” (b). Section 54 of the NDPS Act provides as under: 54. (2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.” (b). Section 54 of the NDPS Act provides as under: 54. Presumption from possession of illicit articles.- In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of - (a) any narcotic drug or psychotropic substance or controlled substance; (b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated; (c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or (d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily. 28. In view of all that is discussed above, the impugned judgment, order and sentence cannot be termed as bad in law. The same is perfectly legal based on the correct appreciation of the evidence on record. No other view is possible. No interference therefore with the impugned judgment and order is called for. 29. In the result, the appeal is dismissed.