JUDGMENT : 1. The appellants herein namely, Thanapandi, Ramani, Anushan and Yoganath Kumar were found guilty of offences under Section 8(c) read with 20(b)(ii)(B) of NDPS Act by the Second Additional Special District Court for NDPS Act Cases at Madurai in C.C.No 269 of 2013. Aggrieved by the conviction and sentence, the accused have preferred appeals individually. Since the above four appeals arise from same judgment, common judgment is passed. For better clarity, the appellants are referred as per their description and ranking in the Trial Court. 2. Brief facts: (i) On 28.06.2013 at about 22.00 hours at Madurai, K.Pudur, SIDCO Arch, when the Inspector of Police, Law and Order, K.Pudur Police Station and his team were on patrol, found two persons suspiciously in an Auto bearing Registration No.TN-59-AP-5392. When questioned about their name and address, initially they gave contradictory response, later disclosed their name as Thanapandi (A.1) and Ramani (A.2). They confessed possession of ganja (cannabis) kept for sale. They were informed about their option to be searched before a gazetted officer or Judicial Magistrate. They declined to exercise the option. They produced 2.100 kilogram ganja packet kept in the auto and Rs.415/- being the sale proceeds of ganja. (ii) Based on the confession statement of Thangapandi, his associates, Anushan (A.3) and Yoganath Kumar (A.4) were intercepted near SIDCO post office at about 22.30 hours. They were standing with a two wheeler Hero Honda Splendor bearing Registration No.TN-59-AA-1072. On interrogation, they admit possession of ganja. They were informed about their option to be searched before a gazetted officer or Judicial Magistrate. They declined to exercise the option. They produced 2.200 kilograms of ganja kept in the two wheeler pouch and Rs.400/- being the sale proceeds of ganja. (iii)The samples drawn from the bulk were sent to the State Forensic Lab. The chemical analyst report reveals, they are leaves, flower and buds of ganja plant containing canabinoid. (iv)The Trial Court relying upon the evidence let in by the prosecution through its witnesses P.W.1 to P.W.3, Ex.P.1 to Ex.P.10 and M.O.1 to M.O.3 had held the prosecution has proved the guilt of the accused and sentenced them to undergo 15 months rigorous imprisonment and to pay a fine of Rs.10,000/- each, in default to undergo 3 months simple imprisonment. The period of sentence already undergone by the accused were ordered to be set off. The period of sentence already undergone by the accused were ordered to be set off. The auto M.O.3 and two wheeler M.O.4 along with cash Rs.415/- and Rs.400/- were ordered to be confiscated to the State after the appeal period. 3. A.1 Thangapandi (Appellant in Crl.A(MD)No.20 of 2017), A.2 Ramani (Appellant in Crl.A(MD)No.28 of 2017), A.3 Anushan (Appellant in Crl.A(MD)No.29 of 2017) and A.4 R.Yoganath Kumar (Appellant in Crl.A(MD)No.31 of 2017) are before this Court challenging the judgment of conviction and sentence for the following reasons: (a) The informant and the investigation officer in this case are one and the same person (P.W.3). (b) The alleged search and seizure are not in compliance with the provisions of NDPS Act. The right of option to be searched before a gazetted officer or a Judicial Magistrate under Section 50 of the Act is not complied. (c) No evidence to corroborate the version of the prosecution regarding search and seizure. Joint consent memo for search by P.W.3 is against law and non est. (d) The crime number found in the slip pasted on the sample packets drawn at the site of seizure and absence of the crime number is other documents prepared contemporaneously at the site of seizure failed to cause doubt in the mind of the Trial Court. (e) Ex.P.5, the letter of the Special Judge for NDPS Act, forwarding the samples to the lab for analysis, specifically describes the sample packets affixed with police button seal. Whereas, the chemical analyst report Ex.P.6conspicuously silent about the police seal on the sample packet received for analysis. (f) P.W.2, Thiru.Baskaran, who received the samples for analysis admits that he has not mentioned about the police seal. He only compared the Court seal and mentioned about it in his report. (g) P.W.3 has not forwarded his report to his immediate superior informing about the seizure of ganja as mandated under Section 57 of the NDPS Act. 4. The learned counsels appearing for the appellants submitted that, the Trial Court ought to have considered the alleged seizure of ganja by the respondent police from the accused 1 to 4 has not been proved in the manner known to law. The violation of the mandatory provisions of Sections 50 and 57 of the NDPS Act were not at all properly considered by the Court below. 5. The violation of the mandatory provisions of Sections 50 and 57 of the NDPS Act were not at all properly considered by the Court below. 5. The learned counsels for the appellants would further submit that non-examination of independent witnesses, contradiction in the depositions of P.W.1 and P.W.3, impossibility of preparing the documents relied and marked as exhibits at the alleged scene of occurrence, presence of crime number in the sample packets alone and not in other documents, absence of police seal in the sample packet received at lab and delay in forwarding the material objects to the Court, all cumulatively considered, will expose the falsehood of the prosecution. Since the Trial Court has failed to appreciate these facts properly, the Judgment is liable to be set aside. 6. Per contra, the learned Government Advocate (Criminal side) appearing for the respondent would submit that in case of this nature it is hard to get independent witnesses. The attempt to get independent witnesses and their refusal to stand as witnesses is deposed by P.W.1 and P.W.3 in his cross examination. Evidence of official witnesses cannot be suspected as tainted. They are competent and reliable witnesses. From the seizure mahazars, Ex.P.1 and Ex.P.2 and from the ocular evidence of P.W.1 Ravichandran (Sub Inspector of Police) and PW-3 Saravana Ravi (Inspector of Police), it is well proved that the contraband were voluntarily handed over by the accused persons. Nothing was recovered from the body search of the accused persons. The option to be searched before a gazetted officer or a Judicial magistrate has been declined by the accused persons and the same were recorded in writing and marked as Ex.P.7 and Ex.P.9. Since no contraband was recovered from the body pursuant to the body search, joint consent given by the accused persons is noway prejudice to them. 7. Regarding compliance of Section 57 of the NDPS Act, the learned Government Advocate (Criminal side) pointed out that in the FIR, P.W.3, Investigating Officer, has mentioned that the FIR and connected documents are forwarded to the Court as well the officers concern. Relying upon the Judgment of the Hon'ble Supreme Court in Sajan Abraham v. State of Kerala reported in 2001 (6) SCC 692 , submitted that Section 57 of the Act is only directory in nature, if it is substantially complied, trial will not get vitiated. 8. Relying upon the Judgment of the Hon'ble Supreme Court in Sajan Abraham v. State of Kerala reported in 2001 (6) SCC 692 , submitted that Section 57 of the Act is only directory in nature, if it is substantially complied, trial will not get vitiated. 8. Point for consideration: "Whether the lacuna pointed out by the appellants are sufficient to hold it vitiate the prosecution case resulting in reversing the Trial Court finding?" 9. According to the deposition of P.W.1, Ravichandran, Sub-Inspector of Police attached to K.Pudur Police Station, on 28.06.2017 at about 10.00 p.m., he went for patrol along with Saravana Ravi (Inspector of Police) and Sevlaraj (Grade-I Police Constable). As per the deposition of P.W.3 Saravana Ravi, on that day he along with Selvaraj, Chellakannu (both Grade I Police Constables - not examined) along with police party went for patrol. In the cross-examination, he has stated that the documents such as consent letter for search, seizure mahazars were prepared by Murugan (Head Constable - not examined) at the spot of recovery. Thus, even though there were other witnesses present during the search and seizure, the prosecution has not chosen to examine them. P.W.1 and P.W.3 are the two witnesses examined by the prosecution to speak about the complicity of the accused persons. They both are police personnels part of the patrol team. P.W.3 is both the informant and investigating officer. Therefore, their evidence has to be scrutinized with caution, which can be done, through the test whether statutory in-build safeguards made in Sections 50, 52 and 57 of the Act are complied or not. 10. In this case, consent letter for personal search has been obtained from A.1 and A.2 jointly and same is marked as Ex.P.7. Similar joint consent letter is obtained from A.3 and A.4 and marked as Ex.P.9. In State of Rajasthan v. Parmanand and others reported in (2014) 5 SCC 335, the Hon'ble Supreme Court has held as follows: "17. In our opinion, 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. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before the nearest gazetted officer or before a nearest Magistrate. ... ... ..." In the case cited supra, in a joint consent letter, Surajmal, one of the two accused, has signed for himself and the co-accused Parmanand consenting to be searched before P.W.5, J.S.Negi, Superintendent, a member of the raiding team. Opium was recovered from the bag carried by Parmanand. So, the Hon'ble Supreme Court has held that there is no individual communication of the right under Section 50 of the Act and therefore the right under Section 50 not properly communicated. 11. Whereas in the case in hand, both the accused have signed the respective consent letter. Further, the recovery of the contraband is not the resultant of any search. From the deposition of P.W.3, it appears that the accused have voluntarily handed over the contraband when interrogated. Under these circumstances, the observations in Parmanand's case cited supra have no application to the present facts of the case. 12. Further it is also to be recorded that the Constitution Bench of the Hon'ble Supreme Court in State of Punjab v. Baldev Singh (1999 SCC (Cri) 1080), has settled the law under what circumstances violation of Section 50 of the NDPS Act could be inferred. The test laid down in that Judgment also for the facts of this case, does not fall prey to the violation of section 50 of the NDPS Act. 13. The test laid down in that Judgment also for the facts of this case, does not fall prey to the violation of section 50 of the NDPS Act. 13. It is to also to be made clear at this juncture that recovery resultant to body search and recovery other than body search are different in all aspect. Section 50 of the Act can be pressed into application only in case of recovery which has proximity to the body search. Recovery of contraband elsewhere unconnected to body search or voluntary handing over of the contraband will not require the compliance of Section 50 of the NDPS Act. 14. As far as submission made regarding compliance of Section 57 of the Act in Sajan Abraham case cited by the prosecution, the Hon'ble Supreme Court after perusal of records and the observation of the High Court has held as under: “12.The last submission for the appellant is, there is non- compliance of Section 57 of the Act. He submits under it, an obligation is cast on the prosecution while making an arrest or seizure, the officer should make full report of all particulars of such arrest or seizure and send it to his immediate superior officer within 48 hours of such arrest or seizure. The submission is, this has not been done. Hence the entire case vitiates. It is true that the communication to the immediate superior has not been made in the form of a report, but we find, which is also recorded by the High Court that PW5 has sent copies of FIR and other documents to his superior officer which is not in dispute. Ex.P9 shows that the copies of the FIR along with other records regarding the arrest of the appellant and seizure of the contraband articles were sent by PW5 to his superior officer immediately after registering the said case. So, all the necessary information to be submitted in a report was sent. This constitutes substantial compliance and mere absence of any such report cannot be said to have prejudiced the accused. This section is not mandatory in nature. When substantial compliance has been made, as in the present case it would not vitiate the prosecution case. In the present case, we find PW5 has sent all the relevant material to his superior officer immediately. Thus we do not find any violation of Section 57 of the Act”. This section is not mandatory in nature. When substantial compliance has been made, as in the present case it would not vitiate the prosecution case. In the present case, we find PW5 has sent all the relevant material to his superior officer immediately. Thus we do not find any violation of Section 57 of the Act”. Whereas in the present case, except a stray reference in the FIR which says, copy of the FIR was forwarded to the officers concern, nothing else to indicate who that officer or his rank. It also does not indicate whether it is his immediate official superior. Further Section 57 directs the investigating officer to report about the seizure to the immediate superior officer within 48 hours. Mere forwarding the copy of the FIR is not sufficient to presume that all particulars regarding arrest and seizure reported to the immediate superior official. 15. In Gurbax Singh v. State of Haryana reported in AIR 2001 SC 1002 , the Hon'ble Supreme Court has observed that, it is true that Section 57 is directory in nature. Violation of this section would not ipso facto vitiate the trial or conviction. However, the investigation officer cannot totally ignore the provisions. Failure in compliance of this provision will have a bearing on the arrest and seizure of the accused. 16. When the informant and investigating officer is one and the same person, the credibility of the prosecution case has to be viewed very sceptically. That apart, the doubt regarding whether the sample drawn from the bulk of contraband was affixed with police seal or not and how the crime number of the case came to be mentioned in it, not explained by the prosecution satisfactorily. In the said circumstances, the omission to send report to the immediate superior in compliance with Section 57 of the NDPS Act gains significance. It certainly had caused strain in the veracity of the prosecution case. Hence, the benefit of doubt is to be extended to the accused. 17. For the aforesaid reasons, the appeals are liable to be allowed. Accordingly, Crl.A(MD)Nos.20,28,29 and 31 of 2017 are allowed and the Judgment dated 18.01.2017 passed in C.C.No.269 of 2013 by the Second Additional Special District Court for NDPS Act Cases, Madurai is set aside. The appellants/accused shall be set at liberty. Bail bonds, if any, executed by them shall stand canceled. Accordingly, Crl.A(MD)Nos.20,28,29 and 31 of 2017 are allowed and the Judgment dated 18.01.2017 passed in C.C.No.269 of 2013 by the Second Additional Special District Court for NDPS Act Cases, Madurai is set aside. The appellants/accused shall be set at liberty. Bail bonds, if any, executed by them shall stand canceled. Fine amount, if any, paid by them, shall be refunded to the accused forthwith. Regarding the material objects, the order of the Trial Court stands unaltered. Consequently, connected Miscellaneous Petition is closed.