Judgment 1. The appellant is arrayed as an accused in C.C.No.7 of 2011, on the file of the Court of Additional District Judge for Principal Special Court for N.D.P.S. Act Cases, Madurai, on the basis of the complaint given by the respondent herein. The trial Court found the accused is guilty for the commission of offences under Section 8(c) r/w 21(C) of NDPS Act and imposed a sentence to undergo R.I. for 10 years and also imposed a fine of Rs 1,00,000/-, in default, to undergo R.I for a period of 3 years, vide Judgment dated 30.12.2011. The trial Court further found that the accused is not guilty for the commission of offence under Section 8(c) r/w 25 and 8(c) r/w 29 of NDPS Act. The trial Court further directed the period of sentence already undergone by the accused is to be set off under Section 428 Cr.P.C. Challenging the sentence and conviction passed by the trial Court, the accused has filed this Criminal Appeal. 2. The facts leading to this appeal are as follows: P.W.1 is the Inspector of Customs, attached to the office of the Customs at Kanyakumari. On 14.09.2010, at about 7.00 a.m., he received an information that one Balamurugan (Appellant/Accused) belongs to Tuticorin with brown complexion and 5-1/2 feet tall, is waiting at Thiruchendur to Kanyakumari Road near Athankarai Mosque, with 500 gms of Heroin and the said information was conveyed to him in writing. P.W.1. immediately informed the same to his immediate superior official viz. , Mr. Maruthaiya, the Superintendent of Customs (P.W.8) and also submitted a written report, at about 7.30 a.m., after translating the information in English, which was received in vernacular language and it is marked as Ex.P1. P.W.1 along with independent witnesses viz. , P.W.6 Sasi and one Sekar, and along with other ofiicials viz. , Sivakumar, Rishikesh, Chellathangam and Nagarajan (not examined) under the leadership of P.W.8, the Superintendent of Customs, proceeded to the place, where the accused was waiting with the contraband and they mounted a survelliance near Athankarai Pallivasal between 1.30 p.m., and 2.00 p.m. At about 2.00 p.m., a person, whose identification almost tallied with the identification described in Ex.P1, was waiting with a polythene bag and they went and introduced him and also informed the fact that they are officials of Narcotic Central Bureau (NCB). The said person, on enquiry, informed that he is Balamurugan S/O.Rajaendran and he informed the officials that he is in possession of 500 gms of Heroin (1/2 kg.), which is a psychotropic substance and his intention is to sell the same. Before effecting the search, the accused was informed the right that the search can be conducted either in the presence of Judicial Magistrate or in the presence of Gazetted Officer. It is further informed that the search can be made even in the presence of P.W.8, Superintendent, who is also the Gazetted Officer. However, the said person, who is the appellant/accused herein viz. , Balamurugan expressed his no objection that he can be searched by the officials. The appellant/accused was also searched in person and in his shirt pocket a sum of Rs.90/- was found. P.W.8 searched the polythene bag, which was in the possession of the appellant/accused herein and inside the polythene bag, one more polythene bag was found and in that bag, one more polythene bag was found and inside that bag, a round shape object with a print of ISI number about 90 capsules of Heroin were found. The said bag was cut with by using a knife and the contents were spread and from that, small sample was taken and it was tested by using the test kit and it was found that it is a Psychotropic substance viz. , ‘Heroin’. Thereafter, the contraband was seized and it was weighed and was measured about 440 gms. For the purpose of chemical analysis, 5 gms each of the said contraband were taken, as samples and those samples were put inside two small polythene covers and were sealed separately and marking was assigned as ‘P1S1 and P1S2’. The remaining contraband measured about 430 gms was put in the same polythene bags, and were sealed and given marking as ‘P1’ and after taking the same, the remaining 90 plastic capsules in the bags were sealed together and given marking as ‘P2’ and P.W.8 as well as independent witnesses viz. , P.W.6, Sasi and Sekar had put their signatures in all the above said bags viz. , ‘P1S1 and P1S2’ and the said process went on between 2.00 to 3.30 p.m. Thereafter, the seizure mahazar was prepared and completed at about 4.30 p.m., and it was prepared on the spot itself. , P.W.6, Sasi and Sekar had put their signatures in all the above said bags viz. , ‘P1S1 and P1S2’ and the said process went on between 2.00 to 3.30 p.m. Thereafter, the seizure mahazar was prepared and completed at about 4.30 p.m., and it was prepared on the spot itself. The seizure mahazar was prepared by P.W1 and in the seizure Mahazar P.W.8 and others independent witnesses had put their signatures and a copy of the same was also furnished to the accused on the spot itself and it was acknowledged by him and in this regard a Mahazar was also prepared and the same was marked as Ex.P2. 3. The accused as well as the seized contraband were brought to the office of the Customs at Kanyakumari at about 5.30 p.m., on 14.09.2010. With regards the seizure of some of Rs.90/-, which has found on the shirt pocket of the accused, was given back to him and a receipt was obtained. 4. For the purpose of enquiring the accused, he was issued with summons under Section 67 of the Narcotic and Psychotropic Substances Act, 1985 (NDPS Act) with a direction to come and appear before him on the next day on 15.09.2010 and it was marked as Ex.P.12. In terms of summons, that accused was present on 15.09.2010 and he was informed that any statements given by him under the said provision will be used against him in any Court in this Country and inspite of intimation of warning, the accused voluntarily come forward to give a statement and as per the statement, he was introduced by one Guru (absconding accused) by his uncle Jesudasan from whom, he has purchased the contraband and the said Gurur asked him about 15 days prior to the occurrence to sell it for Rs.2,00,000/- and for effecting the sale, the accused made arrangement with one Manikandan (absconding accused) and since Manikandan asked him to come near Athankarai Mosque on 13.09.2010, he was waiting near that place with contraband. The statement given by the accused under Section 67 of NDPS Act was recorded by P.W.2 and it was read over to him and after understanding and accepting the contents of the same, the accused has put his signature and it was also counter signed by P.W.2. A copy of the same was also furnished to him. The statement given by the accused under Section 67 of NDPS Act was recorded by P.W.2 and it was read over to him and after understanding and accepting the contents of the same, the accused has put his signature and it was also counter signed by P.W.2. A copy of the same was also furnished to him. On 15.09.2010 at about 8.00 a.m., the accused was explained the reason for his arrest and thereafter, he the accused viz. , Rajendran was also informed of his arrest by means of Telegram and the copy of the Telegram was marked as Ex.P.14. The accused along with the seized contraband etc., were produced before the Court of Judicial Magistrate No.1, Nagercoil and the accused was remanded to judicial custody for 15 days and further order was passed to deposit the case property on the file of Court of Special Court for NDPS Act cases at Madurai on 16.09.2010. The seized contraband etc. , were sent through P.W.4, Ashokumar to Madurai and it was deposited in the Court on 22.09.2010. P.W.8 has prepared a detailed report under Section 67 of NDPS Act and submitted the same to the Assistant Commissioner of Customs viz., Mr. S.K. Reddy. On 16.09.2010, the house of the accused was searched and nothing incriminated was found and having come to know that the arrangement for purchasing the contraband was made through uncle of the accused viz. , Jesurajan and that he was available in a lodge at Mannadi, Chennai. The room in which was occupation of Jesurajan was searched and three photographs were seized and relevant records with regards to his stay in the lodge were also seized. The photographs were marked as M.O.1 series and the register maintained by the Hotel was marked as Ex.P16 subject to objection. P.W.8 on 25.08.2010 summoned P.W.6 Sasi and L. Sekar, independent witnesses for the purpose of recording the statement under Section 67 of the NDPS Act and accordingly, they appeared on 27.09.2010 and gave their statement. Since both of them have not acquainted with the Tamil language their statements were written by P.W.1 in English and they also acknowledged the correctness of the contents of the said statement and put their signatures. Since both of them have not acquainted with the Tamil language their statements were written by P.W.1 in English and they also acknowledged the correctness of the contents of the said statement and put their signatures. Thereafter, P.W.8 made arrangements for testing the samples by conducting quantitative and of qualitative test and the sample of seized contraband was sent through P.W.1 and a requisition was also submitted to the Court marked as Ex. P8. The Analyst after analysing the sample has submitted his report stating that the contraband is Narcotic substance viz. , Heroin. It was also indicated in the said report that the machine to do the quantitative test, is not in order and therefore, after obtaining necessary permission from the Court, the sample was again sent for chemical analysis. P.W.7, who is the Scientific officer attached to the Forensic Science Department, Government of Tamil Nadu, has given his report dated 06.07.2011, which is marked as Ex.P.11 stating that the analysis of sample leads to detection of diacetyl-morphine sample and the percentage was found to be 61.06 w/w. Subsequently, P.W.8 made a requisition to examine the accused, who was in judicial custody and the said requisition was marked as Ex.P.20 and after obtaining permission, the accused was interrogated in jail and the photographs seized in a lodge at Mannady, Chennai was shown to him and in one photograph he was found along with his uncle Jesudhasan. P.W.8, Superintendent of Customs, during the course of investigation has found that on 14.09.2010, the accused through the friend of Jesudhasan viz. , Guru (absconding accused) intend to sell the psychotropic substances for a higher amount and accordingly, purchased 440 gms of Heroin and made arrangements to sell it through Manikandan (absconding accused). After completing the investigation, P.W.8 has filed a complaint stating that the accused has committed the offence under Section 8(c) punishable under Section 21(c) of the NDPS Act. The other accused viz. , Jesudhasan, Guru and Manikandan inspite of search are not traceable and therefore, they are treated as absconding accused. The complaint lodged on the file of Court of Special Court of NDPS Cases on 15.02.2011 is marked as Ex.P.21. The Scientific Officer, who subsequently examined the sample was examined as additional witness P.W.7. 5. The prosecution in order to sustain their complaint, examined P.Ws.1 to 8 and marked Exs.P1 to 21 and also marked M.Os.1 to 5. The complaint lodged on the file of Court of Special Court of NDPS Cases on 15.02.2011 is marked as Ex.P.21. The Scientific Officer, who subsequently examined the sample was examined as additional witness P.W.7. 5. The prosecution in order to sustain their complaint, examined P.Ws.1 to 8 and marked Exs.P1 to 21 and also marked M.Os.1 to 5. The accused was questioned under Section 313(1) (b) of Cr.P.C., with regard to incriminating substance made out against him in the evidence rendered by the prosecution and he denied it as false. On behalf of the accused neither oral evidence was let in nor documents were marked. 6. The trial Court on a consideration of oral and documentary evidence has found that the accused guilty under Section 8(c) r/w 25 and 8(c) r/w 29 of NDPS Act and found him guilty under Section 8(c) r/w 21(c) of NDPS Act and imposed the sentence of imprisonment and fine with default sentences, as stated above. Challenging the legality of the same, the present appeal is filed. 7. The learned counsel appearing for the appellant/accused has drawn the attention of this Court to the testimonies of P.Ws. 1 and 2 and other documentary evidences made a primordial submission that in respect of search of a bag said to have been in possession of the accused, though Section 50 of the NDPS Act has no application but, the fact remains that the accused was searched in person and a sum of Rs.90/- was seized from his shirt pocket and later on, it was given to him and an acknowledgement was also obtained in that event. It is mandatory on the part of the respondent to strictly comply with the Section 50 of NDPS Act and but it was not done. It is mandatory on the part of the respondent to strictly comply with the Section 50 of NDPS Act and but it was not done. It is the further submission of the learned counsel appearing for the appellant/accused that the testimonies of P.Ws.1 and 2 and other document evidences would disclose that before effecting the search the appellant/accused was put on notice that such a search can be made either in the presence of the Judicial Magistrate or in the presence of Gazetted Officer but, he has waived his right and in addition to that, he was also put on notice that he wants to be searched in the presence of Gazetted Officer, which can be done so, in the presence of P.W.8 himself, who headed the party, who is also happened to be a Gazetted Officer. It is the forcible and vehement submission of the learned counsel for the appellant that such a kind of procedure adopted by the respondent is per se illegal and on the sole ground, the conviction and sentence imposed by the trial Court is vitiated and is liable to be set aside. In support of his submission, the learned counsel placed reliance upon the Judgment rendered by the Hon’ble Supreme Court of India in State of Rajasthan v. Parmanand and Another 2014 STPL (Web) 114 SC : AIR 2014 SC 1384 : (2014) 5 SCC 345 . It is the further submission of the learned counsel appearing for the appellant that if this court does not agree with the said point, he has got other tenable grounds to attack the conviction and sentence recorded by the trial court. 8. Per contra , Mr. C. Arulvadeval @ Sekar, the learned counsel appearing for the respondent would vehemently contend that respondent after full and strict compliance of all the procedures and formalities contemplated under NDPS Act, has seized the contraband and also invited the attention of this Court to the testimonies of P.Ws.1 to 8 and would submit that admittedly, the accused was in possession of a polythene bags and search of the same resulted in seizure of the contraband and therefore, Section 50 of NDPS Act has no application, as the contraband was not seized from the person of appellant/accused. 9. 9. In so far as the submission made by the learned counsel appearing for the respondent that an option was given to the appellant/accused to search in the presence of P.W.8, who is also a form part of the party, it is the submission of the learned counsel for the respondent that in addition to safeguard provided, the appellant /accused was put on notice about the presence of a Gazetted Officer (P.W.8) and in any event, it cannot be termed as fatal to the case of the prosecution and it can be termed only as an infirmity and by adopting such a procedure cannot be said that the appellant/accused put to prejudice in any manner. Lastly, it is submitted by the learned counsel for the respondent that the trial court on a thorough and exhaustive consideration of oral and documentary evidence has rightly recorded the conviction and imposed the sentence adequately and the exercise of appellate jurisdiction may not interfere with the well considered findings rendered by the trial Court and prayed for dismissal of appeal. 10. This court paid anxious consideration and submission made by the learned counsel for the appellant/accused and the learned counsel appearing for the respondent. 11. P.W.1 at the relevant point of time was the Inspector of Customs, attached to the office of Customs at Kanyakumari and he would state among other things that after receipt of secret information which was reduced in writing, was informed to the immediate superior official viz. , P.W.8, Maruthiah, superintendent of customs, under Ex.A1. Thereafter, a party left under the leadership of P.W.8 Maruthiah to amount surveillance and seize the contraband. P.W.1 in the chief examination would submit that they found the accused standing nearby Athankarai Mosque and the officials have introduced themselves to him and he voluntarily told them that he is in possession of 500 gms. of Heroin and he is keeping the same for the purpose of selling it. The accused was also informed prior to effecting the search, it can be done so either before the Judicial Magistrate or the before the Gazetted Officer and therefore, it is open to him to exercise such a right. The appellant/accused was further informed that the same thing can be done in the presence of P.W.8, Superintendent of Customs, who is also a Gazetted Officer. The appellant/accused was further informed that the same thing can be done in the presence of P.W.8, Superintendent of Customs, who is also a Gazetted Officer. However the appellant/accused by saying that the official present can themselves can search him and accordingly, he was searched in person, which lead to the recovery of a sum of Rs. 90/-, which was kept in his shirt pocket and latter on returned to him under acknowledgement. The search of polythene bags revealed that he was in possession of 440 gms of Heroin. At that time of search, the independent witnesses viz. , P.W.6 Sasi and Sekar were also present. In the cross examination of P.W.1 deposed that independent witnesses were procured by P.W.8 and denied the suggestion that prior to effecting the search the accused was not informed of his right available to him under Section 50 of the NDPS Act. 12. P.W.8 at the relevant point of time was employed as the Superintendent of Customs in the office of Customs at Kanyakumari and in the chief examination he would depose among other things that he was informed by P.W.1 Kannadasan about the smuggling of the contraband viz. , Heroin and he also submitted a report. Ex.P.1 and he procured the service of independent witness viz. , P.W.6, sasi and L.Sekar and thereafter, under his leadership, a party consisting of various officials proceeded to Athankarai Mosque at Thiruchendur to Kanyakumari main road and the identity of the person tallied with the information and therefore, he was enquired and the person has informed him that his name is Balamurugan s/o. Rajendran and he was in possession of polythene bag and on enquiry, he had admitted that he is in possession of the same. P.W.8 further deposed that the officials informed the accused about the right of search in the presence of Judicial Magistrate or in the presence of Gazetted officer and he has expressed his disinclination. P.W.8 further deposed that the officials informed the accused about the right of search in the presence of Judicial Magistrate or in the presence of Gazetted officer and he has expressed his disinclination. The accused was further informed about the presence of P.W.8, who is the Gazetted officer and he was asked whether he can be searched in the presence of P.W.8 and for that also, the accused expressed his disinclination and thereafter, he was searched in person, which lead to recovery of Rs.90/-, which is kept in his shirt pocket, which latter on returned him with acknowledgment and the search of the polythene bag reveals that that he was in possession of 440 gms of Heroin. 13. In the cross-examination P.W.8 denied the suggestion that though he is a Gazetted officer, the search cannot be done in his presence but it can be done only in the presence of independent officials of gazetted rank. 14. Ex.P3 is the statement given by P.W.6 viz. , Sasi under Section 67 of NDPS Act, and a perusal of such statement would disclose that the accused was also informed that he can be searched in the presence of P.W.8/ Gazetted officer. However, the accused responded by saying the other officials present can search him. Similarly, the statement of L. Sekar, the other independent witness marked as Ex.P4, recorded under Section 67 of NDPS Act, is also on the similar lines. Ex.P6 is the statement of the accused recorded under Section 67 of the NDPS Act and a cursory perusal of the same would disclose that he was informed that he can be searched in the presence of P.W.8/ Gazetted officer. 15. Therefore, the question arises for consideration in this appeal is as to whether the information given by the accused/appellant that he can also be searched in the presence of P.W.8 Maruthiah/Gazetted officer/Superintendent of Customs, Office of the Customs, Kanyakumari is in violation of Section 50 of NDPS Act. The said ground of attack urged by the learned counsel appearing for the petitioner/ appellant is no longer res integra in the light of the Judgment of the Hon’ble Supreme Court of India reported in State of Rajasthan v. Parmanand and Another (supra) . 16. The said ground of attack urged by the learned counsel appearing for the petitioner/ appellant is no longer res integra in the light of the Judgment of the Hon’ble Supreme Court of India reported in State of Rajasthan v. Parmanand and Another (supra) . 16. The facts of the said decision would indicate that the State of Rajasthan aggrieved by the order of acquittal recorder by the High Court of Rajasthan, has preferred the criminal Appeal. The respondents/ accused were tried by Special Court (NDPS Cases), Chhabra, District Baran, for the commission of offences under Section 8 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The two accused were nabbed and joint written notice was given to them with regard to their right to be searched in the presence of Superintendent viz. , J.S. Negi. However, it was acknowledged by only one of the accused and thereafter the bag of one of the accused was searched by the Sub Inspector of police, in the presence of the Superintendent viz. , J.S. Negi. The trial Court has convicted the accused and sentenced them accordingly and aggrieved by the conviction and sentence, the accused had preferred an appeal before the High Court of Rajasthan. The High Court of Rajasthan has recorded the findings that there was no comply of Section 50 of NDPS Act and citing the said ground, acquitted both the accused and it was challenged before the Hon’ble Supreme Court. On behalf of Stats of Rajasthan, it was urged that mandatory provision of Section 50 has been complied with by issuing notice in writing which was served on both the accused and therefore, it amounts to compliance of Section 50 of NDPS Act and hence, the finding recorded by the Rajasthan High Court that Section 50 of the NDPS Act, has not been complied with, cannot be termed as tenable. The Hon’ble Supreme Court of India has posed a question whether section 50 the NDPS Act was complied with or nor and placed reliance upon the Constitution Bench Judgment of State of Punjab v. Baldev Singh (1994) 6 SCC 172 and on the facts of the case found that the conviction in solely based on the recovery of opium from the bag of the first accused. The Supreme Court has recorded the opinion that a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50 and the communication of the said right to the person who is about to be searched is not an empty formality and it has a purpose. It was further observed that most of the offences under the NDPS Act, carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed and these are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unamnbiguous and individual and the accused must be made aware of the existence of such a right. On the facts of the case, the Hon’ble supreme Court of India held that a joint communication to both accused which was acknowledged by one of the accused may create confusion and the accused must be individually informed that under Section 50(1) of the NDPS Act as he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate. In paragraph No.19, the Hon’ble Supreme Court recorded the finding that offer made by P.W.10, Sub Inspector, Qureshi that they could be searched before the nearest Magistrate or before a nearest gazetted officer or before P.W.5 J. S. Negi, the Superintendent, is again a breach of Section 50 of the NDPS Act. The Supreme Court further recorded that the idea behind taking an accused to a nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer and therefore, it was improper for P.W.10 SI to tell the respondents that a third alternative was available and that they could be searched before P.W.5 J.S. Negi, the Superintendent, who was part of the raiding party and he cannot be called an independent officer. Therefore, the Hon’ble Supreme Court of India citing the reasons confirmed the order passed by the Rajasthan High Court and dismissed the appeal preferred by the State. 17. In the considered opinion of this Court, the above Judgment cited by the Learned counsel appearing for the appellant/ accused is squarely applicable to the facts of the present case. The testimonies of P.W.1, P.W.8, the statements of independent witnesses viz. 17. In the considered opinion of this Court, the above Judgment cited by the Learned counsel appearing for the appellant/ accused is squarely applicable to the facts of the present case. The testimonies of P.W.1, P.W.8, the statements of independent witnesses viz. , Sasi (P.W.6) Sekar, Mahazar, the appellant/accused and under Section 67 of the NDPS Act would also disclose that apart from the accused was informed of his right to be examined and searched in the presence of Judicial Magistrate and Gazetted officer, was also informed it can be done so in the presence of P.W.8 who himself is a Gazetted officer. 18. It is very pertinent to point out that at this juncture that Ex.P.1 special report was submitted by P.W.1 to P.W.8 who made arrangements for procuring independent witnesses and he lead the party which ultimately nabbed the accused and effected the seizure of the contraband. In the considered opinion of this Court, adoption of the procedure in para 17 of this order, is fatal to the case of the prosecution and the view of this Court is also supported by the above said decision rendered by the Hon’ble by Supreme Court, since this Court is inclined to agree with the said submission of the learned counsel for the appellant, it need not go into the other grounds urged in the grounds appeal. 19. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed by the learned Additional District Judge for principal Special Court for N.D.P.S. Act cases, Madurai in C.C.No.7 of 2011, dated 30.12.2011, is set aside and the appellant is acquitted. Consequently, connected Miscellaneous Petition is closed. Appeal allowed.