JUDGMENT AND ORDER : 1. This is an appeal against the judgment and order dated 24.10.2008, passed in Sessions (Special) Case No. 6(K)/2007 by the learned Sessions Judge, Kamrup, Guwahati, convicting the accused/appellant under Section 20(b)(II)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “Act”) and sentencing him to RI for 2 (two) years and fine of Rs. 10,000/- in default, RI for another 3 (three) months. 2. On receipt of an information that the accused/appellant, a GRPF Constable, kept some contraband-suspected to be ganja, in his quarter, the Officer In-Charge of Rangia Police Station, Sri Biren Borgohain reduced the same into writing, vide GD Entry No. 141 and authorised Md. Amjad Ali, SI of Police, to take required steps as per procedure. Thereafter Md. Amjad Ali, along with some other Police officials and Civil officials, searched the house of the accused/appellant observing the prescribed Rules and Procedure. 3. On such search, the SI of Police, Md. Amjad Ali seized 2½ kgs. of suspected ganja in presence of the witnesses along with some other articles, such as smoking pipe and knife. These were seized from the possession of the accused/appellant. The seized articles were brought to the Police Station thereafter. 4. The Officer In-Charge of Rangia Police Station lodged an FIR. The Rangia Police Station registered a case being Rangia PS Case No. 397/2007 under Section 20(B) of the ‘Act’ and entrusted SI of Police, Md. Amjad Ali with the investigation of the case. The Investigating Police Officer examined the witnesses, took samples from the seized articles, and sent the same to the Forensic Science Laboratory (FSL) for necessary action. 5. The FSL report opined that the samples of articles sent to it got positive test for cannabis following which the Investigating Officer submitted Charge-Sheet against the accused/ appellant for commission of the offence under Section 20(B) of the Act. 6. The learned Special Judge, under the Act, framed charges against the accused/appellant under Section 20(b)(II)(B) of the Act. The accused/appellant pleaded innocence to the charges. 7. After completion of recording of evidence of the 11 witnesses, produced by the prosecution, statement under Section 313 Cr.PC of the accused/appellant was recorded. The accused/appellant in his such statement, denied his involvement in the alleged offence. 8. The prosecution examined as many as 11 witnesses. The defense examined none. 9. I have also heard Mr. 7. After completion of recording of evidence of the 11 witnesses, produced by the prosecution, statement under Section 313 Cr.PC of the accused/appellant was recorded. The accused/appellant in his such statement, denied his involvement in the alleged offence. 8. The prosecution examined as many as 11 witnesses. The defense examined none. 9. I have also heard Mr. H. Talukdar, learned counsel appearing for the accused/appellant as well as Mr. B.B. Gogoi, learned Additional Public Prosecutor, appearing for the State of Assam. I have also meticulously scanned the evidence on record. 10. The argument advanced by the learned counsel for the accused/appellant mainly revolves around violation of Sections 42(1), 42(2), 50, 52 and 57 of the Act for which, according to him, the prosecution case fails. 11. On the other hand, learned Additional Public Prosecutor, Assam argues that no interference with the judgment passed by the learned Special Judge (Sessions Judge) is called for, as the judgment is a well-reasoned one, based on evidence on record. 12. The Investigating Officer, examined as PW-10, in his evidence narrated that the Officer-in-Charge of the Rangia Police Station (PW-11) made GD Entry No. 141, dated 06.09.2006, on receipt of the information of possession of some suspected ganja by the accused/appellant at his house, accompanied the Officer In-Charge of Rangia Police Station (PW-11) to the house of the accused, searched his house in presence of PW-1, Smti Anurupa Baruah and some other witnesses, and found the suspected contraband in a polythene bag along with some other articles and seized the same vide Ext. 1. After observing all required legal formalities, collected samples of the contraband, i.e. ganja. Thereafter, the sample, so collected, was sent to the FSL for examination. On receipt of the report of the FSL, the accused/appellant was arrested. He searched the house and seized the articles indicated above on being authorized by Officer-in-Charge of Rangia Police Station. In its cross-examination also, this witness has found to have adhered to his stand that he complied with the provisions of Section 50 of the Act, which relates to search and seizure. Vide exhibits 1, 2 and 3, this witnesses proved the seizure of the ganja, smoking pipe and the knife. Therefore, there was no violation of the provisions of Section 50 of the Act. 13. Vide exhibits 1, 2 and 3, this witnesses proved the seizure of the ganja, smoking pipe and the knife. Therefore, there was no violation of the provisions of Section 50 of the Act. 13. In the instant case, it appears from the evidence on record that out of the 11 witnesses so examined, the most vital witnesses are PW-9, PW-10 and PW-11 for the purpose of establishing that the articles seized from the house of the accused/appellant was, infact, ganja or not. While, PW-10 categorically stated in his evidence that on 06.09.2006, during the course of search, he seized the polythene bag containing the contraband ganja as well as smoking pipe and a small knife, which were seized vide Ext. 1, i.e. the seizure list. The house of the accused/appellant was searched on the basis of a secret information received by PW-11, Biren Borgohain, Inspector of Police, who also made the GD Entry No. 141, dated 06.09.2006 and marked and proved as Ext.A. After seizure of the contraband from the house of the accused/appellant, the PW-1 lodged an FIR and entrusted the investigation to PW-10. Thereafter, PW-10 sent samples of the suspected contraband for forensic examination under the signature of the SDPO, Rangia vide Ext. 6, wherein Ext. 6(1) is the signature of the SDPO, Sri Anant Tiwari and Ext. 6(2) is the sealed impression. 14. PW-9, Dr. Dhruba Jyoti Hazarika, Scientific Officer, Drugs and Narcotic Division, Directorate of Forensic Science Medicine, Assam, Guwahati said in this evidence that he received a sealed parcel on 08.09.2006 from the Director, FSL containing one sealed envelope having a closed polythene bag containing about 24 grams dry plant materials, marked as ‘A’ which he marked as DN No. 232/2006, on 08.09.2006. This Ext. DN No. 232/2006 on chemical examination, tested positive for cannabis (ganja) and the report was forwarded to the SDPO, Rangia, vide Ext. 5, by the Director of the Forensic Laboratory. Therefore, on the basis of un-assailed evidence, it can be safely held that what was seized by the Investigating Officer was contraband ganja. During the course of argument also, the learned counsel for the accused/appellant did not challenge the finding of the PW-9 in his report to the effect that the samples examined was contraband ganja. 15. Therefore, on the basis of un-assailed evidence, it can be safely held that what was seized by the Investigating Officer was contraband ganja. During the course of argument also, the learned counsel for the accused/appellant did not challenge the finding of the PW-9 in his report to the effect that the samples examined was contraband ganja. 15. Learned counsel for the accused/appellant canvassed before this Court that the provisions of Sections 42(1), 42(2), 50 and 52 of the Act are violated by the prosecution. Therefore, the conviction of the accused/appellant for the commission of he offence, said to have been committed by him, cannot sustain. 16. The ‘officers’ referred to in Section 42(1) and 42(2) of the Act, are mandated that, normally, a police cannot enter into and search any building, conveyance and other confined area any time between sunrise and sun set and, whenever they initiate any action on the basis of information etc, as referred to in Section 42(1) of the Act, they must get their immediate superior officer informed about the action taken on the information. They need to do it within 72 hours from the time of taking action on such information. The material evidence reveals that the PW-10, PW-11 are the officers empowered under Section 42(1) of the Act. That being so, the PW-10 and PW-11 are required to exercise their powers within certain parameters fixed by law and with a good deal of caution. 17. The instant case is covered by Section 42 of the Act is not in question. Section 42 of the Act commands an officer, acting thereunder, to perform certain required formalities. They are 1. He must reduce to writing the information regarding commission of the offence. 2. He must report his immediate superior officer about the action, he has taken on the basis of the information. In case of search of houses or any other enclosed passage, the above provisions of law provides that the search should be carried out during the day time only. 18. The prosecution contended that it complied with the said requirements of law, and to substantiate such contention, the prosecution has utilized the evidence of different witnesses. PW-10, Md. In case of search of houses or any other enclosed passage, the above provisions of law provides that the search should be carried out during the day time only. 18. The prosecution contended that it complied with the said requirements of law, and to substantiate such contention, the prosecution has utilized the evidence of different witnesses. PW-10, Md. Amzad Ali, claims that on 06.09.2006, at about 4:45 pm, Sri Biren Borgohain, PW-11, the then Officer In-Charge of Rangia Police Station, receipt a secret information to the effect that the accused/appellant had illegally kept some ganja in his house for some commercial purpose. The information so received was reduced to writing by the PW-11, vide GD Entry No. 141 dated 06.09.2006, and the PW-11 authorised the PW-10, the Investigating Officer, in writing, to take necessary actions against the accused/ appellant vide the authorization letter, marked as Ext. 8. Ext. ‘A’ is the GD Entry. Such evidence of the PW-10 received complete support from the PW-11. Therefore, as per evidence of PW-10 and PW-11, which corroborates documentary evidence, as mentioned above, leaves us with no hesitation to hold that Section 42(1) of the Act, in respect of this prime condition, has been satisfied by the prosecution. Now, the issue is whether the officer, who has taken action under Section 42 of the Act, reported to his immediate superior of the action he had taken on the basis of a secret information within 72 hours or not. The prosecution appears to have relied upon the evidence of PW-1 Smti. Anurupa Baruah, who was an Extra Assistant Commissioner at Rangia Sub-Division. It is, infact, clear from her evidence that she went to the place at about 4:40 pm where the PW-10 and PW-11 were to conduct the search. It has further come out from her evidence that search was conducted in presence of host of officers including herself, SDO(Civil) Rangia, and SDPO, Rangia. Such evidence of PW-1, read in combination with the evidence of PW-10 and PW-11, leaves no doubt that search in the house of the accused/appellant was conducted by the PW-10 and PW-11 in presence of their superior officer, i.e. SDPO, Rangia. Such evidence discloses that requirement of Section 42(2) of the Act was complied with. Such evidence of PW-1, read in combination with the evidence of PW-10 and PW-11, leaves no doubt that search in the house of the accused/appellant was conducted by the PW-10 and PW-11 in presence of their superior officer, i.e. SDPO, Rangia. Such evidence discloses that requirement of Section 42(2) of the Act was complied with. Such conclusion arrived at by this Court also received support from the un-assailed evidence of PW-10 that the sample taken from the seized articles was sent to the forensic expert and same was done at the behest of the SDPO, Rangia, and he also wrote a letter to the Director, FSL, Kahilipara, Guwahati, vide Ext. 6, with a request to get the sample, sent therewith, examined by expert. This Ext. 6 is dated 07.09.2006. This evidence leaves the Court with no alternative but to accept that the PW-10 and PW-11 informed their senior officers, i.e. SDPO, Rangia, as required under Section 42(2) of the Act. Thus, there appears to be no violation of Section 42(2) of the Act. 19. Further to prove that the search, under scrutiny, was conducted between sunrise and sunset by the Police Officer, PW-10 and PW-11 are found to be officers empowered under Section 42(1) of the Act only and as provided in the said provision of the Act, they are bound to make search in the building, etc between sunrise and sunset only. The prosecution relying upon the evidence of PW-1, PW-10 and PW-11 submits that the search was conducted at the day time only. The evidence of the PW-1 is that she arrived at the place to be search at 4:45 pm. PW-10 during his cross-examination reveals that he arrived at the place of search at about 5:30 pm. The evidence on record, on perusal, does not reveal that the search was conducted after sunset and before sun rise. 20. The learned counsel for the accused/appellant has also stated before this Court that the provision of Section 50 of the Act has not been complied with while search was made. The evidence on record, on perusal, does not reveal that the search was conducted after sunset and before sun rise. 20. The learned counsel for the accused/appellant has also stated before this Court that the provision of Section 50 of the Act has not been complied with while search was made. In this connection, learned counsel for the accused/appellant has referred to the decision of the Hon’ble Supreme Court in the case of State of H.P. vs. Pirthi Chand and Another, (1996) 2 SCC 37 and submitted that, searching officer must mandatorily inform the accused of his right to choose to be searched in the presence of a gazetted officer or Magistrate. It may be mentioned that the safeguard mentioned in Section 50 are intended to serve a dual purpose- to protect the person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. 21. The search, in the instant case, was itself made in presence of the superior officer, i.e., SDPO, Rangia, and the PW-1, Smti. Anurupa Baruah, who is an Extra Assistant Commissioner. Therefore, there is absolutely no doubt about the presence of gazetted officer during the search. The argument for the appellant, on this count, therefore, fails. 22. In respect of the argument of violation of provision of Section 52 of the Act, there is no evidence on record agitated by the defense or no whisper is made to that effect during the cross-examination of the witnesses that the accused/appellant was not informed of the grounds of his arrest. There is no evidence of non-compliance of the remaining part of the Section 52 of the Act. The evidence, on record, clearly reveals that the seizure made in the case was made in presence of the immediate superior officer of the PW-10 and PW-11, who were, respectively, the SDO (Civil) and SDPO, Rangia. 23. The learned counsel has also argued that the Investigating Officer did not confirm from the Railway authority as to the occupation of the house, in which the search was conducted and the contraband was found, to find out whether it was allotted to the accused/appellant. This arguments lost its importance in view of the fact that the evidence of PW-2 and PW-6 shows that the house was under the occupation of the accused/appellant at the relevant point of time. This arguments lost its importance in view of the fact that the evidence of PW-2 and PW-6 shows that the house was under the occupation of the accused/appellant at the relevant point of time. The PW-2 is also GRP personnel and he knew the incident. He found some people gathered in front of the quarter of the accused and he also went there. PW-6 also stated in his evidence that the accused/appellant is his colleague and the Police from Rangia Police Station searched the house of the accused/appellant. Therefore, no other proof is required to establish that the house was under occupation of the accused/appellant. 24. In view of the above discussions, and the reasons recorded therein, this Court has no hesitation to hold that the contraband ganja was seized from the possession of the accused/ appellant and that, there is no glaring legal infirmity in the search and seizure of the contraband ganja from the possession of the accused/appellant. 25. Therefore, no interference with the judgment and order of the learned Special Judge (Sessions Judge), Kamrup (Metro) convicting the accused/appellant and sentencing him to suffer RI for 2 years and fine of Rs. 10,000/- in default, RI for another 3 months for offence under Section 20(b)(II)(B) of the Act is called for. The conviction and sentence of the accused/appellant is affirmed. Accordingly, the appeal is dismissed. Send down the LCR with copy of this judgment.