JUDGMENT : A.P. Thaker, J. 1. By filing this appeal, the appellants have challenged judgment and order dated 27.8.2013 passed by Special Judge, Valsad in Special Case NDPS No. 2 of 2009 whereby the appellants-original accused nos. 1 to 3 have been held guilty for the offence punishable under Section 20 (B) (2) (b) of the NDPS Act and were sentenced to suffer five years' rigorous imprisonment with fine of Rs. 25,000/- each and in default of payment of fine, to suffer three months' rigorous imprisonment. The appellants-original accused nos. 1 to 3 have also been held guilty for the offence punishable under Section 20 (B) (2) (b) of the NDPS Act and were sentenced to suffer ten years' rigorous imprisonment with fine of Rs. 1,00,000/- each and, in default of payment of fine, to suffer one year's rigorous imprisonment. 2. The facts leading to the prosecution against the appellant in nutshell are as under : 2.1 According to the prosecution case, the present incident had taken place on 24.05.2009 at 17.00 hours on the road going towards Balitha Railway Crossing. It is the case of the prosecution that on 24.05.2009, the accused no. 1 to 3 had come on the road going towards Balitha Railway Crossing with Charas and Ganja for selling the same. It is alleged that police found 11.750 kilogram of ganja worth Rs. 1,17,500/- and 2.175 kilogram of charas worth Rs. 2,17,500/- from the possession of the accused. It is alleged that after carrying out panchnama, the samples were collected and sealed in presence of the panchas and the same were sent to Forensic Science Laboratory (FSL) and the offence has been registered and accused were arrested. Ultimately on receiving the charge-sheet, the said case was registered as Special (NDPS) Case No. 2 of 2009 in the Court of learned Special Judge, Valsad. 2.2 It appears from the records that to prove the case, the prosecution has examined the following witnesses. Ultimately on receiving the charge-sheet, the said case was registered as Special (NDPS) Case No. 2 of 2009 in the Court of learned Special Judge, Valsad. 2.2 It appears from the records that to prove the case, the prosecution has examined the following witnesses. P.W.1 Shaktisinh Jitendrasinh Jhala Panch witness 21 P.W.2 Deposition of Satishkumar Bhagvatishankar ASI 40 P.W.3 Deposition of Dipakkumar Bhagubhai Patel FSL Officer 63 P.W.4 Deposition of Dharmendrasinh Sarjusinh Chauhan Complainant 71 P.W.5 Deposition of Jagdishbhai Premabhai Tangal Witness 95 P.W.6 Deposition of Harishbhai Vithalbhai Brahmbhatt Panch witness 100 P.W.7 Deposition of Sherbahadur Kesariprasad Yadav Panch witness 105 P.W.8 Deposition of Sunny Bhupatbhai Rathod Police constable who brought the muddamal to the FSL 106 P.W.9 Deposition of Suresh Motiram Dholeni ASI 112 P.W.10 Deposition of Bhupendrasinh Naginsinh Chavda Police Inspector 119 2.3 In addition to this, the prosecution has also produced the following documentary evidence: Sr. No. Particulars Exh. 1. Panchnama 22 2. Seizure Memo 23 3. Arrest Memo of accused 24 4. Slips signed by the panchas and accused 25 to 31 5. Report of FSL report 64 6. Complaint 72 7. Letter of Confidential Note No.4/09 with regard to informing to the police 73 8. Copy of Confidential Note No.4/09 74 9. Letter of police officer informing about arrest of accused, handing over the muddamal, as also the accused to the police station and registration of the NDPS case. 75 10. Letter of handing over the muddamal and accused to the PI, Vapi Town 77 11. V.S.F. Message 78 12. V.S.F. Message for calling FSL Officer 79 13. Resolution of Section 42 of NDPS Act 80 14. Original RC Book of Toyota Car 96 15. Original Driving Licence of accused Ramnath Ramdayal Yadav 97 16. Original identity card of accused Ramnath Ramdayal Yadav 98 17. Search panchnama of the house of the accused 101 18. Arrest panchnama of accused 102 19. Receipt regarding receiving muddamal by FSL 107 20. Xerox copy of station diary 113 21. Xerox copy of receipt regarding receiving muddamal 114 22. Forwarding Note 120 23. Letter wrote to FSL Officer 121 24. FSL Analysis Report 122 25. Search panchnama of the house of the accused 101 18. Arrest panchnama of accused 102 19. Receipt regarding receiving muddamal by FSL 107 20. Xerox copy of station diary 113 21. Xerox copy of receipt regarding receiving muddamal 114 22. Forwarding Note 120 23. Letter wrote to FSL Officer 121 24. FSL Analysis Report 122 25. Forwarding letter with Form – F for filling up Form – F sent to Investigating Officer 123 2.4 At the end of trial, after recording the statement of the accused under Section 313 of the Criminal Procedure Code, 1973 and after hearing the arguments on behalf of the prosecution and the defence, the learned Special Judge held the appellants - accused guilty for the above offences charged against them and awarded sentence as narrated herein above. 3. Being aggrieved by and dissatisfied with the aforesaid Judgment and order of conviction and sentence the appellants - accused have preferred this Appeal. 4. Learned advocate Mr. Manan Shah for the appellant has contended that it is alleged by the prosecution that the accused were coming from Vapi to Daman and were travelling in the vehicle, which was intercepted by the police officer concerned and it is alleged that the 11.750 kg. of Ganja and 2.157 kg. of charas were found from the vehicle and the accused were arrested. While referring the entire evidence on record, he has mainly contended that there is no evidence as to who has brought the contraband articles and to whom it was to be sold. He has referred to the charge-sheet, column no. 5 and has contended that there is an allegation that contraband article was given to the accused no. 1 was for sale and it was brought from Nepal but there is no evidence as to who has brought the contraband article from Nepal and to whom the accused were to sell it. He has also contended that the owner of the car has been examined at Exh. 95 but from his evidence, it cannot be said that at the relevant time, accused no. 1 was in possession of the vehicle. He has mainly contended that in this case, there is a breach of Section 42 and 50 of the NDPS Act. He has also submitted that there is breach of Section 67 as no statement of the accused were recorded. 1 was in possession of the vehicle. He has mainly contended that in this case, there is a breach of Section 42 and 50 of the NDPS Act. He has also submitted that there is breach of Section 67 as no statement of the accused were recorded. He has also contended that no station diary number is there in Exh. 73. According to him, only register number has been shown in Exh. 74, 75. According to him, this reports cannot be said to be compliance of Section 42 (2) of the NDPS Act. He has also referred to the evidence and has stated that though there was concrete information available with the concerned police officer, he has not called for the FSL team along with him before raid and FSL team was called after two hours. He has also stated that entire complaint is tainted one and benefit should be given to the accused. He has also referred to certain judgments and has contended that this is the first offence of the accused and some leniency may be shown to the accused for rehabilitation in the society. He has also stated that the accused have almost completed their sentence. He has also submitted that to exercise judicial discretion for reducing the sentence. He has referred to following decisions:- (i) Judgment of this Court in Criminal Appeal No. 1752 of 2009 dated 28.3.2004. (ii) Judgment of Rajasthan High Court in Criminal Appeal No. 475 of 2001 dated 21.7.2004 (iii) Judgment of this Court in Criminal Appeal Nos. 494 and 580 of 2003 dated 16.9.2009. (iv) Judgment of Madras High Court in Criminal Appeal No. 717 of 2008 dated 4.8.2009. 5. Per contra, learned APP, Ms. Jirga Jhaveri, has vehemently submitted that the prosecution has been able to prove the charges framed against the accused and the trial Court has not committed any error of facts and law in convicting the accused for the offences under the NDPS Act and as there was commercial quantity of the contraband articles, no leniency may be shown to the accused and this Court may not exercise judicial discretion by reducing the sentence. Accordingly, she has prayed to dismiss present appeal. 6. On perusal of the entire evidence on record, it transpires that the learned Special Judge and Presiding Officer, Fast Track Court, Valsad, has framed charge at Exh. Accordingly, she has prayed to dismiss present appeal. 6. On perusal of the entire evidence on record, it transpires that the learned Special Judge and Presiding Officer, Fast Track Court, Valsad, has framed charge at Exh. 16 against five accused for the offences punishable under Section 20-B, 21, 22, 23 and 29 of the NDPS Act, 1985 stating that the accused no. 1 to 3 were travelling in Qualis bearing No. DD-03 C-504 and they were in possession of the contraband article viz. 11.75 kg. of ganja amounting to Rs. 1,17,500/- and 2.175 kg. of charas amounting to Rs. 2,75,100/- on 24.5.2009 at about 17 p.m. After recording of the charge, he has examined the accused and the accused pleaded not guilty and claimed to be tried. Accordingly, prosecution has led evidence, which includes 10 witnesses and 25 documents. 7. After recording of the evidence, accused were examined under Section 313 of the Criminal Procedure Code, wherein they have denied to have committed any offence and stated that they are falsely implicated and they are innocent. After hearing both the sides, learned trial Judge has convicted the accused, as stated herein above. It appears that two accused have been acquitted from all the charges and three accused have been acquitted from the charges of offence under Sections 21, 22, 23 read with Section 29 of the NDPS Act, however, they have been convicted for the offence punishable under Section 20-B (2) (b) and 20 (B) (2) (c) of the NDPS Act and have been sentenced, as aforesaid. It is also found that all the sentences are ordered to run concurrently and benefit of set off has been given to the accused. 8. On perusal of the evidence on record, it transpires that the complainant Dharmendrasinh Sarjusinh Chauhan stated that on 24th May 2009, he was serving in SoG, Valsad, Camp Vapi, and at about 9.45 a.m., he got the information from the informant that the present accused was coming in Qualis with contraband article for sale and, therefore, he entered the same facts in the secret register as entry no. 4/2009 and sent information to the higher officer at Valsad and, thereafter, through constable Narendra he got two panchas viz. 4/2009 and sent information to the higher officer at Valsad and, thereafter, through constable Narendra he got two panchas viz. Shaktisinh Zala and Ansari and, thereafter, after preliminary procedure they started searching the vehicle and the vehicle was found at Railway crossing and, therefore, along with panch and police, the same was raided, wherein three persons were travelling and those persons were the present three accused. He has also narrated that after informing the accused that he is a gazetted officer and whether they want to be searched in presence of any other gazetted officer, to which the accused denied and, thereafter, search was continued of the vehicle and that the muddamal articles were found. Thereafter, necessary panchnama was drawn and after calling scientific officer and getting necessary samples thereof, person of the accused were also searched and driving license etc. were recovered and panchnama was carried out there and, thereafter, he filed a complaint and sent all the relevant papers to the concerned police inspector. Thereafter, during his examination produced relevant documents. During his cross-examination, it has been revealed that he has not prepared any resolution under Section 42 of the Act. However, he has stated that there is no need of such resolution as he is serving in SoG group and it is not a police station. Of course, he has stated that whatever entry, he has made in secret register is not required to be made as per the legal provision. It also transpires from the evidence that he has initially raided and got the muddamal articles from the present accused and all the three accused were found in the vehicle in question. 9. So far as the evidence of panchas is concerned, it is found that the panch, who was present during the raid, has supported the case of the prosecution in his deposition. The panch witness Shaktisinh Zala in his evidence at Exh. 21 has also identified all the three accused persons. Of course, he has not identified the other two accused who have been acquitted by the trial Court. He has also narrated that panchnama was written by the writer and it was dictated by Police Inspector, Shri Chauhan. He has specifically stated that police inspector has also informed the accused as to whether they want to be examined in presence of another Gazetted Officer, but they have denied. He has also narrated that panchnama was written by the writer and it was dictated by Police Inspector, Shri Chauhan. He has specifically stated that police inspector has also informed the accused as to whether they want to be examined in presence of another Gazetted Officer, but they have denied. It is also found from the evidence that FSL officer, Dipkkumar Patel, in his evidence at Exh. 63 has also said the same version, which has been narrated by the complainant, police inspector Shri Chauhan. This witness has also supported the case of the prosecution that he has carried out necessary sampling of the muddamal article at the place where the accused were found. It is also found from the evidence of ASI, Satishkumar Bhagvatishankar at Exh. 40 that he was in the raiding party. According to this witness, everything was carried out at the place where the vehicle was found. He has also stated that the information has not been registered in a station diary as SoG is not a police station but a branch only. Now it appears from the evidence of Jagdishbhai Tangar at Exh. 95 that he is the owner of a vehicle and he is also the owner of the hotel Saurin and Gurukrupa. He has specifically stated that at the relevant date at about 10 a.m. the accused Ramanbhai has taken out Qualis from his hotel for bringing the materials for hotel and he did not return till evening and his mobile was also switched off. According to him, he tried to find out the vehicle in Vapi market, but neither the vehicle nor the driver was found. It is also stated that at 9 p.m. when they reached Vapi Police Station, they found their vehicle parked in the police station and on inquiry it was found that charas and ganja was found from that vehicle and at that time he saw the accused in the police station itself. From the evidence of this witness, it is clearly found that at the relevant time accused Ramnath has taken out the vehicle from the hotel and he was in possession thereof. 10. So far as other panchas are concerned, they have turned hostile. So far as the investigation officer is concerned, he has also supported the case and nothing beneficial to the accused has come out from his cross-examination. 10. So far as other panchas are concerned, they have turned hostile. So far as the investigation officer is concerned, he has also supported the case and nothing beneficial to the accused has come out from his cross-examination. Of course, he has admitted that he has not send any report to the District Police Inspector under Section 57 of the NDPS Act and there is no name of panchas in the complaint as well as there is no mention in the complaint that along with complaint there was panchnama and FSL report. 11. On the basis of this evidence, learned trial Judge has acquitted accused nos. 4 and 5, whereas present accused have been convicted. 12. Now, so far as compliance of Section 42 (2) is concerned, in the case of M. Prabhulal v. Directorate of Revenue Intelligence reported in (2003) 8 SCC 449 , it is held as under in paragraph 14 :- "14. Section 41(1) which empowers a Magistrate to issue warrant for arrest of any person whom he has reason to believe to have committed any offence punishable under the NDPS Act or for search, has not much relevance for the purpose of considering the contention. Under Section 41 (2) only a Gazetted Officer can be empowered by the Central Government or the State Government. Such empowered officer can either himself make an arrest or conduct a search or authorize an officer subordinate to him to do so but that subordinate officer has to be superior in rank to a Peon, a Sepoy or a Constable. Sub-section (3) of Section 41 vests all the powers of an officer acting under Section 42 on three types of officers (i) to whom a warrant under sub-section (1) is addressed, (ii) the officer who authorized the arrest or search under sub-section (2) of Section 41, and (iii) the officer who is so authorized under sub-section (2) of Section 41. Therefore, an empowered Gazetted Officer has also all the powers of Section 42 including power of seizure. Section 42 provides for procedure and power of entry, search seizure and arrest without warrant or authorization. An empowered officer has the power of entry into and search of any building, conveyance or place, break open door, remove obstruction, seize contraband, detain, search and arrest any person between sunrise and sunset in terms provided in sub-section (1) of Section 42. Section 42 provides for procedure and power of entry, search seizure and arrest without warrant or authorization. An empowered officer has the power of entry into and search of any building, conveyance or place, break open door, remove obstruction, seize contraband, detain, search and arrest any person between sunrise and sunset in terms provided in sub-section (1) of Section 42. In case of emergent situation, these powers can also be exercised even between sunset and sunrise without obtaining a search warrant or authorization, in terms provided in the proviso to sub-section (1) of Section 42. Sub-section 2 of Section 42 is a mandatory provision. In terms of this provision a copy of information taken down in writing under sub-section (1) or ground recorded for the belief under proviso thereto, is required to be sent by the officer to his immediate official superior. It is clear from Section 41(2) that the Central Government or State Government, as the case may be, can only empower an officer of a gazetted rank who can either himself act or authorize his subordinate on the terms stated in the Section. Under sub- section (1) of Section 42, however, there is no restriction on the Central Government or the State Government to empower only a Gazetted Officer. But on an officer empowered under sub-section (1) of Section 42, there are additional checks and balances as provided in the proviso and also provided in sub-section (2) of Section 42. It is clear from the language of sub- section (2) of Section 42 that it applies to officer contemplated by sub- section (1) thereof and to a Gazetted Officer contemplated by sub-section (2) of Section 41, when such Gazetted Officer himself makes an arrest or conducts search and seizure. It would be useful to also notice Section 43 which relates to power of seizure and arrest in public place. Any officer of any of the departments mentioned in Section 42 is empowered to seize contraband etc. and detain and search a person in any public place or in transit on existence of ingredient stated in Section 43. It can, thus, be seen that Section 42 and 43 do not require an officer to be a Gazetted Officer whereas Section 41(2) requires an officer to be so. and detain and search a person in any public place or in transit on existence of ingredient stated in Section 43. It can, thus, be seen that Section 42 and 43 do not require an officer to be a Gazetted Officer whereas Section 41(2) requires an officer to be so. A Gazetted Officer has been differently dealt with and more trust has been reposed on him can also be seen from Section 50 of the NDPS Act which gives a right to a person about to be searched to ask for being searched in presence of a Gazetted Officer. The High Court is, thus, right in coming to the conclusion that since the Gazetted Officer himself conducted the search, arrested the accused and seized the contraband, he was acting under Section 41 and, therefore, it was not necessary to comply with Section 42. The decisions in State of Punjab v. Balbir Singh, [1994] 3 SCC 299, Abdul Rashid ibrahim Mansuri v. State of Gujarat, [2000] 2 SCC 513 and Beckodan Abdul Rahiman v. State of Kerala, [2002] 4 SCC 229, on the aspects under consideration are neither relevant nor applicable." 12.1 This view has been confirmed in the case of Union of India v. Strohan reported in (2008) 8 SCC 313 . 13. Now, admittedly in this case, the Police Officer of SoG, Mr. Chauhan is a gazetted officer and, therefore, in view of aforesaid judgment of the Supreme Court, it was not necessary for him to comply with the provisions of Section 42. Therefore, the contention of the learned advocate regarding non-compliance of Section 42 (2) is concerned, is devoid of merits. 14. It is also pertinent to note that NDPS Act provides for presumption of culpable mental state in Section 35 as well as presumption from possession of illicit articles in Section 54 therefore, which are reproduced herein below:- "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. 54. Presumption from possession of illicit articles. 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.]" 15. In view of Section 35, there is a presumption of culpable mental state of the accused act and it is for the accused to prove that he had no such mental state with respect to the act charged as an offence in the prosecution. In view of Section 54, the Court may presume unless and until the contrary is proved that the accused has committed an offence under this Act in respect of narcotic drug for the possession of which he fails to account satisfactorily. Now, admittedly in this case, there is no evidence produced by the defence to rebut this presumption. Nothing adverse has come out from the cross-examination of the prosecution witnesses for rebuttal of such presumption. Therefore, even by drawing adverse inference, as the accused were found in vehicle with the contraband articles, it can be presumed that they had mental state to possess that contraband article and, therefore also conviction as recorded by the learned trial Court cannot be faulted with. The conclusion of conviction and sentence imposed on the accused cannot be said to be illegal. 16. For reducing the sentence, learned advocate has relied on the decisions, referred to herein above. On perusal of the said decisions, it is found that in the aforesaid cases, the quantity was small one and it was not commercial one, whereas in the present case, quantify of Ganja is below commercial but so far as charas is concerned, it is above commercial quantity. On perusal of the said decisions, it is found that in the aforesaid cases, the quantity was small one and it was not commercial one, whereas in the present case, quantify of Ganja is below commercial but so far as charas is concerned, it is above commercial quantity. Therefore, in view of Section 20 (B) (C) as there is commercial quantity, the accused has to be sentenced for rigorous imprisonment for a term, which shall not be less than ten years but which may extend to 20 years and shall also be liable to fine, which shall not be less than Rs. 1 Lac but it may extend to Rs. 2 Lacs. It is also provided in the said provision that the Court may, for the reasons to be recorded in the judgment, impose a fine exceeding Rs. 2 Lacs. Thus, the fine can be imposed exceeding Rs. 2 Lacs but there is no provision for punishment of less sentence than ten years for commercial quantity. Therefore, in view of factual aspect of the present case, no leniency can be shown to the accused and Court cannot reduce the sentence as imposed by the trial Court, which is legal and valid. 17. Under the circumstances, the present appeal is devoid of merits and the same is dismissed by confirming the impugned judgment of conviction and sentence dated 27.8.2013 passed by Special Judge, Valsad in Special Case (NDPS) No. 2 of 2009 holding the appellants-original accused nos. 1 to 3 guilty for the offence punishable under Section 20 (B) (2) (b) and Section 20 (B) (2) (b) of the NDPS Act. Bail bond, if any, stands cancelled. Record and Proceedings be sent back to the concerned trial Court forthwith.