JUDGMENT : This Court is hearing the appeal as against the order of conviction and sentence respectively passed on 29.05.2009 and 30.05.2009 by the Judge, Special Court (Under N.D.P.S. Act), Jalpaiguri in N.D.P.S. Case No. 30 of 2007 wherein the appellant was convicted in respect of the charge under Section 21(b) of the N.D.P.S. Act. The appellant was sentenced to suffer R.I. for five years and he was further sentenced to pay fine of Rs.20,000/- (rupees twenty thousand) and in default to suffer further R.I. for one year. The seized heroin was ordered to be destroyed after the period of appeal. There was also an order of set off. 2. The case in a nutshell can be stated in brief thus that on 30.07.2007 at about 22.55 hrs. at Kankata More, Eastern by-pass within Police Station Bhaktinagar, District, Jalpaiguri the accused was found to be in possession of 20 gms of heroin which was kept concealed in the left side pant pocket of the present accused-appellant and on demand the accused-appellant failed to produce any valid document or paper for possession of such contraband item and as such the contraband article was seized. It may be mentioned that the de facto-complainant had one tip of regarding the alleged possession of such heroin who according to the prosecution is one drug pedlar. The de facto-complainant diarized the matter being Bhaktinagar Police Station G.D. Entry No.1859 dated 30.07.2007 and the de facto-complainant along with four policemen including A.S.I., Uday Chakraborty went to work out the source information and rest of the story I have already stated. 3. It may be mentioned that the search and seizure was made in presence of Sri Sitaram Sinha, (P.W.4), Circle Inspector (Sadar), NJP, one Gazetted Officer, who was requested to witness the search and seizure. But it may be noted that no written notice under Section 50 of the N.D.P.S. Act was issued even though the contraband article was seized from the pocket of the trouser of the accused. The learned Trial Court in the internal page Nos. 11 and 12 of the judgment dealt with this matter and hold that under Section 50 there is nothing to suggest that such option has to be offered to the accused in writing. 4. It was argued by Mr. The learned Trial Court in the internal page Nos. 11 and 12 of the judgment dealt with this matter and hold that under Section 50 there is nothing to suggest that such option has to be offered to the accused in writing. 4. It was argued by Mr. Dutta, learned advocate appearing on behalf of the State that considering the evidence of P.W.1 to P.W.3 who were members of the raiding party, the evidence of P.W.4, witness to the search being the gazetted officer to comply with the provision of Section 50 and also the evidence of two independent witnesses i.e., P.W.5 and P.W.6 the prosecution could prove charge against accused. 5. He further submitted that P.W.7 being the I.O. of this case has also supported the prosecution story. Regarding documentary evidence it was submitted by Mr. Dutta that the prosecution relied upon the written complaint, seizure list, G.D. Entry, Malkhana Register, the signatures of the witnesses from the seizure list, sketch map with index, report of the F.S.L., command certificate issued to the police officials and also the report of the chemical examiner. 6. Mr. Keshri submitted by taking me to the ground of appeal that the percentage of heroin i.e., the offending Article was 1.49% W/W of five gms and 1.49% W/W of 16 Gms to talling .298 grms which is much even less than small quantity is such the sentence imposed the appellant is bad-in law and liable to be set aside for the ends of justice assuming for arguments sake that the offence was allegedly committed. 7. In this regard Mr. Datta submitted that one notification was issued by the Central Government on 18th of November, 2009 wherein it was notified that the entire contents of the seized article is to be taken into consideration and the percentage of contraband article cannot be taken into consideration and as such he submitted that the entire mixture i.e., the seized article is to be taken into consideration and not in a fragmented manner regarding the enhancement of rule. 8. It was submitted by Mr. Datta that 5 years imprisonment was not enough. On this point of enhancement of sentence it was submitted by Mr. Keshri that accused-appellant has already served out the sentence and has paid fine amount. 8. It was submitted by Mr. Datta that 5 years imprisonment was not enough. On this point of enhancement of sentence it was submitted by Mr. Keshri that accused-appellant has already served out the sentence and has paid fine amount. He further submitted that the accused was fighting this legal battle since 2007 and as such some mercy may be shown to this accused-appellant. 9. I have gone through the evidence on record and taking into consideration of the documentary evidence relied upon by the prosecution it may be noted that the defence did not adduce any oral or documentary evidence and it was claimed by the defence under Section 313 Cr.P.C. that nothing was recovered from him. Thus the accused pleaded that he was implicated falsely in this case. It is a settled law now that whoever pleads is a criminal case that he has been falsely implicated the foundation of it must be proved by the said accused who is alleging so. 10. In the Constitutional Bench decision of the Apex Court as reported in AIR 1999 SC 2378 , (1999)6 SCC 172 (Paragraphs 25 and 57) State of Punjab v. Baldev Singh the Apex Court held that the right to be searched before a Gazetted Officer or a Magistrate is a valuable right which the legislature has given to the person concerned having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act. It further held that it is, however, not necessary to give information to the person to be searched about this right in writing and it is sufficient if such information is communicated to the person concerned orally as far as possible in presence of some independent and respectable persons witnessing the arrest and search. The Apex Court proceeded to say that the prosecution must, however, at the trial, establish that the empowered officer had conveyed the information to the accused and the courts have to be satisfied at the trial of the case about the compliance with the requirements provided in Section 50. In the facts and circumstances before this court the aforesaid judgment will very much apply. 11. In the facts and circumstances before this court the aforesaid judgment will very much apply. 11. Regarding the percentage of less quantity of heroin found in the contraband article this Court is of the opinion that it is true that the notification was issued in 2009 and this incident took place in 2007 but simply because the percentage was less that cannot be a ground for acquittal of the accused. Apart from this aspect, this matter was not thrashed before the learned Trial Court. 12. Thus, considering the evidence on record both oral and documentary this Court is satisfied that the accused-appellant was rightly convicted by the learned Trial Court in respect of the offence punishable under Section 21(b) of the N.D.P.S. Act. Regarding the enhancement of sentence this Court is of the opinion that 5 years of imprisonment and payment of fine of Rs.20,000/- was enough considering the quantity of heroin and the physical and mental harassment which the accused-appellant endured during this long 8 years of legal battle. Thus, there is no question of enhancement of sentence. 13. The judgment, order of conviction and sentence of the learned Trial Court is hereby confirmed. Order of conviction and sentence are all confirmed by this Court. 14. The Department is directed to transmit the L.C.R. along with the copy of this judgment forthwith. The appeal is thus dismissed. 15. There will be no order as to costs. 16. The seized heroin be destroyed after the period of appeal is over. 17. The Malkhana Register i.e., Volume XIII one page of which was marked as Exhibit.4 before the learned Trial Court be returned to the Officer-in-Charge, Bhaktinagar Police Station, District Jalpaiguri by the learned Trial Court on proper receipt after the period of appeal is over and keep a photocopy of that page duly attested by the learned Trial Court. 18. The G.D. Entry Book with effect from 30.7.2007 to 09.08.07 containing G.D. Entry No.1859 be returned to the Officer-in-Charge, Bhaktinagar Police Station, District- Jalpaiguri on proper receipt keeping the certified to be true copy of the said G.D. Entry which is already there in that G.D. Book. 19. The accused-appellant has already served out the sentence and has paid the fine amount. Appeal dismissed.