JUDGMENT : In this appeal filed under Section 374(2) Cr.P.C, the appellant, the accused in S.C.No.1/2007 on the file of the Special Court (NDPS Cases), Vadakara, challenges the conviction and sentence passed against him for the offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act). 2. The prosecution case is that on 05/03/2006 at 04.30 p.m, the accused without any authority was found in position of 1.10 kgs of ganja near the comfort station of the new bus stand, Thalassery. Hence, the accused is alleged to have committed the offence punishable under Section 20(b)(ii)(B) of the Act. 3. PW1, the then Sub Inspector, Thalassery Police Station is the detecting officer who registered the crime, that is, Crime No.84/2006, Thalassery Police Station and lodged Ext.P6 FIR. PW6, the then Circle Inspector, Thalassery, conducted the investigation and submitted the final report alleging commission of the aforesaid offence. 4. On appearance of the accused before the court below, he was furnished with copies of all the prosecution records. On 03/05/2007, the court below framed a charge under Section 20(b)(ii)(B) of the Act, which was read over and explained to the accused, to which he pleaded not guilty. The prosecution examined PWs.1 to 6 and got marked Exts.P1 to P12 and MO1 series to MO3 in support of the case. 5. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C with regard to the incriminating circumstances appearing against him in the evidence of the prosecution. He denied those circumstances and maintained his innocence. 6. As the court below did not find it a fit case to acquit the accused under Section 232 Cr.P.C, the accused was asked to enter on his defence and adduce evidence in support thereof. The accused offered himself as a witness and hence he was examined as DW1. One another witness was examined as DW2. 7. On a consideration of the oral and documentary evidence and after hearing both sides, the court below by the impugned judgment convicted and sentenced the accused to rigorous imprisonment for a term of 3 years and to a fine of Rs.10,000/-and in default of the payment of fine to undergo rigorous imprisonment for a period of 6 months for the offence punishable under Section 20(b)(ii)(B) of the Act. Eligible set off under section 428 Cr.P.C. has also been allowed. Eligible set off under section 428 Cr.P.C. has also been allowed. It is this judgment which is assailed in this appeal by the appellant/accused. 8. In the appeal memorandum it is alleged that there is violation of the mandatory provisions of Section 50 of the Act and that the court below without properly appreciating the oral and documentary evidence has passed the impugned judgment and hence the same is liable to be reversed. 9. The only point that arises for consideration in this appeal is whether the conviction entered and the sentence passed against the accused by the court below are sustainable or not. 10. Heard Sri.Sunny Mathew, the learned counsel for the appellant and Ms.M.N.Maya, the leaned Senior Public Prosecutor. 11. Before I examine the tenability of the arguments advanced on behalf of the appellant/accused, I briefly refer to the oral and documentary evidence adduced by the prosecution, before the court below. PW1, the detecting officer in Ext.P6 FIS and FIR has recorded that on the date of the incident, he along with party were on law and order patrol duty. While so, he received secret information that a person is engaged in the sale of ganja in the vicinity of the comfort station situated in the new bus stand, Thalassery. He then reduced the information into writing, forwarded it to his superior officer, and as per the latter's instructions, proceeded to the place of occurrence. When the police party reached the place of occurrence, he saw the accused standing near the comfort station with a white polythene cover in his hand. When he approached the accused, the latter became perplexed and attempted to run away. The accused was intercepted, his name and details were sought, which was furnished by him. PW1 then told the accused that he has received secret information that the latter is in possession of ganja meant for sale and he explained to the accused that he is an officer who is empowered and authorised to take necessary steps against unauthorised sale of narcotic and psychotropic substances. PW1 asked the accused whether he had any authority to deal with any such substances to which the accused answered in the negative. PW1 asked the accused whether he had any authority to deal with any such substances to which the accused answered in the negative. PW1 then told the accused that he suspects the accused to have kept ganja in his shirt pocket or pant pocket or in his loin or inside the polythene cover in the hand of the accused and so, he needs to search the accused. PW1 asked the accused whether the latter was aware of the fact that he could ask for the presence of a gazetted officer or magistrate, to which the accused answered in the affirmative and said that the same was unnecessary and if required, PW1 himself could conduct the search. PW1 asked the accused to give his consent in writing to which the accused replied that he is unable to do so as he was quite tensed and so asked PW1 himself to reduce the consent in writing. According to PW1, he then, in the presence of the witnesses at the spot reduced the consent of the accused into writing and obtained the signature of the accused and witnesses in the same. Thereafter, PW1 searched the body of the accused and the polythene cover seen in the possession of the accused. On inspecting the cover, he found dried ganja kept in a brown paper cover. As the accused was found to be in unauthorised possession of ganja, he arrested the accused at 4.15 p.m. On weighing the ganja, the same was found to have a weight of 1 kg and 10 gms. Sampling was done. The contraband and sample packets were seized and a seizure mahazar prepared in which he along with the accused and witnesses affixed their signatures. Thereafter, he along with the accused and the contraband article returned to the police station at 7 p.m., and registered the present crime. 12. PW1 when examined before the court, stands by the case narrated in the FIS. According to PW1, Ext.P1 is the Section 42 report ; Ext.P2 the Section 50 report ; Exts.P3 the inspection report ; Ext.P4 the arrest memo ; Ext.P5 the seizure mahazar ; Ext.P6 the FIR ; Ext.P7 the property list and Ext.P8 the report under Section 57 sent to the C.I. Thereafter, the further investigation was conducted by PW6. The remnants received after chemical examination contained in three packets are MO1 series. The remnants received after chemical examination contained in three packets are MO1 series. The remaining ganja, i.e., 999 gms., seized and packed in a cardboard box is MO2 and MO3 is the polythene cover in which the accused had kept the ganja. 13. PW2, a police constable of Thalassery police station, stated to have been in the police party along with PW1 when examined, more or less supports the case of the prosecution. PW3, an attestor to Ext.P5 seizure mahazar, admitted his signature in the mahazar. According to PW3, on 05/03/2006 he had seen the police taking the accused from near the comfort station of the new bus stand, Thalassery. This incident according to PW3, took place between 04.00 and 04.30 p.m. PW4, an attestor to Ext.P9 scene mahazar, admitted his signature in the same. PW4 deposed that he is the person who was running the comfort station at the new bus stand, Thalassery. PW5, the then Special Village Officer, Thiruvangad Village office, deposed that he had prepared Ext.P10 sketch plan which contains his signature. 14. Finally PW6, the then C.I., Thalassery, deposed that on 06/03/2006, the records in the case had been handed over to him. On 09/03/2006 he proceeded to the scene of occurrence and in the presence of witnesses, had prepared the scene mahazar. He had questioned the witnesses and recorded their statements. He submitted Ext.P11 forwarding note requesting the forwarding of the samples for chemical examination. Ext.P12 is the chemical examination report. Thereafter he completed the investigation and submitted the final report before the court. 15. CW2 a police official, alleged to have been in the police party along with PW1 ; CW4 and CW5 who had pointed out the place of occurrence to the investigating officer ; CW7 an occurrence witness and attestor to the seizure mahazar and CW9 an attestor to the scene mahazar have been given up by the prosecution. 16. The accused offered himself as a witness and hence he was examined as DW1. He denied the prosecution case and stated that no contraband article had been seized from him as alleged by the prosecution. He had been arrested from Sree Sailam Rest House, Thiruvangad. He had taken a room in the rest house for going to the temple. When he returned from the temple, the occupants of the nearby rooms informed him that the police had come. He had been arrested from Sree Sailam Rest House, Thiruvangad. He had taken a room in the rest house for going to the temple. When he returned from the temple, the occupants of the nearby rooms informed him that the police had come. Soon, the S.I. and party arrived at the place. He was caught by his collar and abused. DW1 questioned the act of the police. He was then taken to the police station, locked up for about three to four days and manhandled. He was told that he would be produced before the magistrate on 05/03/2006. He was also threatened that if he revealed that the police had manhandled him, he would be implicated in a case. On 05/03/2006, ganja had been seized from a woman named, Sarojini. However she was let free without any case being charged against her. This incident had been reported in the newspapers. With the ganja seized from Sree Sailam Rest House and the ganja seized from the aforesaid lady, the police has foisted a false case against him. He was arrested on 03/03/2006 and not on 05/03/2006. He was also made to sign in a white paper. 17. CW7 an alleged occurrence witness and attestor to the seizure mahazar who had been given up by the prosecution has been examined as DW2. DW2 deposed that the police had taken the accused from Sree Sailam Rest House. According to DW2 he was made to sign in a blank paper at the police station. DW2 also deposed that he had not been questioned by the investigating officer in this case. 18. The first and foremost argument advanced by the learned counsel for the appellant/accused is that there has been a violation of the mandatory provisions of Section 50 of the Act. The testimony of PW1 and Ext.P6 FIS and FIR show that PW1 had only asked the accused whether he was aware that he is entitled to be examined in the presence of a gazetted officer. This is not in compliance of the relevant provision. The testimony of PW1 and Ext.P6 FIS and FIR show that PW1 had only asked the accused whether he was aware that he is entitled to be examined in the presence of a gazetted officer. This is not in compliance of the relevant provision. In support of this argument, reference is made to the decision in Shihab v. Sub Inspector of Police, 2021 (5) KLT 487 , wherein this Court relying on the decision of the Apex court in Man Bhadur v. State of Himachal Pradesh, 2008 (4) KLT 319 , held that the failure to inform the accused that he has a right under Section 50 of the Act to be searched in the presence of a gazetted officer or a magistrate, vitiates the search. Relying on the decision, the argument advanced on behalf of the accused is that since the mandatory provisions of Section 50 has been violated and as there has been a clear non-compliance of the same, the accused is entitled to be acquitted on that sole ground. 19. Section 50 of the Act deals with the conditions under which search of a person shall be conducted. Sub-section (1) says that when any officer duly authorised under Section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in section 42 or to the nearest magistrate. In the case on hand the definite case of the prosecution is that the contraband was seized from a polythene cover, which the accused was carrying/holding in his hand. Therefore the question that arises is whether sub-section (1) to Section 50 was required to be complied with as the ganja was recovered from the polythene bag in the possession or hand of the accused and when no contraband was found on his person. PW1 when examined stands by the case stated in Ext.P6. Going by Ext.P6, search conducted by PW1 was not only of the polythene bag in the hand of the accused but also the person of the accused. 20. PW1 when examined stands by the case stated in Ext.P6. Going by Ext.P6, search conducted by PW1 was not only of the polythene bag in the hand of the accused but also the person of the accused. 20. Here I refer to the decision in State of Punjab v. Baljinder Singh, AIR 2019 (SC) 5298 wherein the question considered was -If a person found to be in possession of a vehicle containing contraband is subjected to personal search, which may not be in conformity with the requirements under S.50 of the Act; but the search of the vehicle resulted in recovery of contraband material, which stands proved independently; would the accused be entitled to benefit of acquittal on the ground of non -compliance of S.50 of the Act, even in respect of material found in the search of the vehicle? The Apex court held that S.50 of the Act affords protection to a person in matters concerning personal search and stipulates various safeguards. It is only upon fulfilment of and strict adherence to said requirements the contraband recovered pursuant to personal search of a person can be relied upon as a circumstance against the person. The law is well settled that an illicit article seized from the person during personal search conducted in violation of the safe -guards provided in S.50 of the Act cannot by itself be used as admissible evidence of proof of unlawful possession of contra -band. But the question is, if there is any other material or article recovered during the investigation, would the infraction with respect to personal search also affect the qualitative value of the other material circumstance. As regards applicability of the requirements under S.50 of the Act is concerned, it is well settled that the mandate of S.50 of the Act is confined to personal search and not to search of a vehicle or a container or premises. Referring to the Constitution Bench decision in State of Punjab v. Baldev Singh, AIR 1999 (SC) 2378 , it has been held that conviction cannot be based only on the basis of possession of an illicit article recovered from personal search in violation of the requirements under S.50 of the Act. But if there is other evidence on record, such material can certainly be looked into. The personal search of the accused in the case did not result in recovery of any contraband. But if there is other evidence on record, such material can certainly be looked into. The personal search of the accused in the case did not result in recovery of any contraband. Even if-there was any such recovery, the same could not be relied upon for want of compliance of the requirements of S.50 of the Act. But the search of the vehicle and recovery of contraband pursuant thereto having stood proved, merely because there was non -compliance of S.50 of the Act as far as personal search was concerned, no benefit could be extended so as to invalidate the effect of recovery from the search of the vehicle. Any such idea would be directly in the teeth of the conclusion in Baldev (supra). 21. As in the case of Baljinder Singh (Supra), in the case on hand also, though the person of the accused was searched, no contraband was recovered. On the other hand, the contraband seized was from the polythene cover in the hand of the accused. This apparently is not a recovery or seizure from the 'person' of the accused and hence in such circumstances, compliance of sub-section (1) of Section 50 does not arise in this case. 22. The next argument advanced is relating to the failure of the prosecution to prove Ext.P1 report, which is stated to be a report under Sub-section(2) of Section 42 of the Act. In support of this argument, reference is made to the decision in Thundiyil Muhammadali v. State of Kerala, 2020 (4) KLT 257 , wherein a learned Single Judge of this Court held that compliance of Sub-section (2) of Section 42 is mandatory, that the compliance of the same will have to be proved by the prosecution and that compliance of the same cannot be presumed without there being any evidence adduced by the prosecution in support of the same. In the case on hand, according to the learned counsel for the accused, Ext.P1 report has not been proved, as PW6, the investigating officer and admittedly the superior officer of PW1, has no case that he had received Ext.P1 report. PW1 in his deposition has only deposed that he had forwarded Ext.P1 to PW6. In the case on hand, according to the learned counsel for the accused, Ext.P1 report has not been proved, as PW6, the investigating officer and admittedly the superior officer of PW1, has no case that he had received Ext.P1 report. PW1 in his deposition has only deposed that he had forwarded Ext.P1 to PW6. However, PW6 has never deposed that he had received the same and hence the argument advanced is that the prosecution has failed in establishing Ext.P1 report and hence the same is yet another reason to acquit the accused. 23. As per the documents on record and the evidence of the witnesses, the search and seizure took place near the comfort station situated in the new bus stand, Thalassery, which admittedly is a public place. That being so, it is the provisions of Section 43 of the Act that would be applicable in this case. The material difference between the provisions of Section 42 and 43 is that Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such, while acting under Section 43, the empowered officer has the power of seizure of the article etc., and arrest of the person who is found to be in possession of any narcotic drug or psychotropic substances in a public place where such possession appears to be unlawful. (Karnail Singh v. State of Haryana, (2009) 8 SCC 539 ). 24. Section 43 deals with the power of seizure and arrest of the suspect in a public place. The material difference between the provisions of Section 42 and 43 is that, where as Section 43 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such, while acting under Section 43, the empowered officer has the power of seizure of the article etc., and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to be unlawful. (Hamidhbai Azambhai Malik v. State of Gujarat, AIR 2009 SC 1378 ). 25. (Hamidhbai Azambhai Malik v. State of Gujarat, AIR 2009 SC 1378 ). 25. As Section 42 of the Act is not applicable in the present case, the seizure having been effected in a public place, the question of non-compliance, if any, of the provisions of Section 42 of the Act is wholly irrelevant. (Narayanaswamy Ravishankar v. Asstt. Director, Directorate of Revenue Intelligence, AIR 2002 SC 3658 ). 26. Another argument advanced on behalf of the accused is regarding the weight of the contraband article seized, which is stated to be 1kg and 10gms. According to the learned counsel for the accused, the prosecution has not let in evidence to prove that the contraband had been weighed independent of the polythene bag in which it is alleged to have been kept. Therefore, the weight of 1kg and 10gms must be inclusive of the weight of the polythene cover and the brown paper cover in which the contraband is stated to have been kept. Had the contraband alleged to have been seized been weighed independently of the cover in which it is stated to have been kept, the weight would have been less than 1 kg. in which case, the offence attracted would only have been an offence involving small quantity. In the year 2006 when the incident is alleged to have taken place, the punishment for being in possession of small quantity of ganja was imprisonment for a term which may extend to six months or with fine which may extend to `10,000/-or both. On the other hand, the punishment for intermediate quantity, as is alleged in the case on hand, is imprisonment for a term which may extend to 10 years and with fine which may extend to one lakh rupees. Therefore the argument is that, this is yet another reason to doubt the prosecution case. 27. Intermediate quantity has not been defined in the Act. Small quantity and commercial quantity has been defined in Section (xxiia) and (viia) respectively of the Act. Therefore the argument is that, this is yet another reason to doubt the prosecution case. 27. Intermediate quantity has not been defined in the Act. Small quantity and commercial quantity has been defined in Section (xxiia) and (viia) respectively of the Act. It reads “(xxiia) small quantity in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette;” (Emphasis Supplied) “(viia) commercial quantity, in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette;” (Emphasis supplied) Item No.55 in the table to the notification issued in exercise of the power referred to in clause (viia) and (xxiia) of Section 2 of the Act deals with ganja. The quantity specified in columns 5 and 6 relating to small quantity and commercial quantity are 1000gm and 20kg respectively. Therefore, ganja up to 999 gms will be small quantity; ganja between 1kg and 20kg intermediate quantity and above 20kg would be commercial quantity. In the case on hand the contraband is stated to have a weight of 1kg and and 10 gms, which is 11 gms, more than small quantity. 28. In Ext.P6, it is stated that PW1 had called for the investigation kit from the police station and on weighing found it have a weight of 1 kg and 10 gms. From the same, he took 5 gms each of ganja in three packets, packed, sealed and signed it. He then covered each packet in brown paper, affixed the signature slip, tied it with twine, affixed the seal of the SHO, marked it 'S1', 'S2' and 'S3'. He put back the remaining ganja along with signature slip in the same brown cover and then put it in a card board box, which was then covered with a brown paper and affixed a paper slip containing his signature as well as that of the witnesses and the accused. He tied it with a twine, affixed the seal of the SHO and gave a marking as ' P1'. The polythene cover in which the ganja had been kept was covered with a brown paper, affixed with a signature slip, tied with twine, the seal of the SHO affixed and given the marking – ' P2'. He tied it with a twine, affixed the seal of the SHO and gave a marking as ' P1'. The polythene cover in which the ganja had been kept was covered with a brown paper, affixed with a signature slip, tied with twine, the seal of the SHO affixed and given the marking – ' P2'. He prepared the seizure mahazar in the presence of witnesses. 29. PW1 when examined, stands by the case narrated in Ext.P6. His case is supported by the testimony of PW2 also. Not even a single question is seen asked in the cross examination relating to the weighing or sampling done. It is certainly true as submitted by the learned counsel for the accused that it is the burden of the prosecution to prove their case beyond reasonable doubt. According to the counsel, it was quite unnecessary to question PW1 on this point in the cross examination as in the chief examination, PW1 has no case that the weighing had been done independently of the polythene cover. There cannot be any doubt or quarrel about the statement that the burden is always on the prosecution to prove the case. However, when Ext.P6 clearly narrates step by step the procedure adopted, giving an indication that the ganja had in fact been taken out of the packet and weighed, it was the duty of the accused to discredit the same. That has not been done in this case. Nothing has been brought out to discredit the testimony of PW1 and PW2. It is true that in Ext.P6 and in the testimony of PW1 it is not stated in so many words that the weighing was done minus the cover in which the ganja had been found. However from the detailed narration in Ext.P6 it does appear that the ganja had been taken out of the cover and weighed. Moreover such a contention or argument is not seen advanced before the court below. From the materials on record it cannot be assumed or presumed that the weighing was done inclusive of the polythene cover and that the weight of the polythene cover would probably come to 11 gms so on and so forth. 30. Normally, in cases of this nature, there will only be the evidence of the official witnesses in support of the prosecution story. 30. Normally, in cases of this nature, there will only be the evidence of the official witnesses in support of the prosecution story. However, in this case, there is the evidence of PW3, an independent witness. According to the accused, he was not arrested from the scene of occurrence as alleged by the prosecution, on the other hand he had been arrested on 03/03/2006 from Sree Sailam Rest House. In order to establish this case, he has also examined DW2. The accused when examined as DW1 deposed that he had been arrested on 03/03/2006 and that he had been kept under unlawful detention in the police station, during which time he had also been manhandled by the police. In the cross examination, he admitted that he had not stated to the magistrate before whom he was produced that he had been manhandled. He further deposed that he neither knows the name of the person who has been arrayed as a witness in his witness schedule nor has he seen him and also that he does not intend to examine the said person as a defence witness. 31. As stated earlier, it is true that it is the duty of the prosecution to establish the case beyond reasonable doubt and the accused has a right to maintain silence. However, in this case, the accused offered himself as a witness and got himself examined as DW1. On examination, initially his case is that he is an Assistant Film Director and that he had come to Thalassery for visiting the Sree Ramaswamy temple. DW1 was not able to specify the period during which he had stayed at the rest house. In the cross examination he deposed that he had arrived at Thalassery in connection with work relating to some movies. Though DW1 claims to have stayed in the aforesaid rest house for a few days, no evidence is forthcoming to establish the same. If he had actually stayed in the place, there would definitely have been documents or entries in the register(s) maintained in the rest house. DW1 has no case that there are no documents to evidence his stay in the rest house. On the other hand, he admits that he had not taken any steps to summon the said documents. It is in this background the testimony of PW3 assumes importance. DW1 has no case that there are no documents to evidence his stay in the rest house. On the other hand, he admits that he had not taken any steps to summon the said documents. It is in this background the testimony of PW3 assumes importance. PW3 deposed that he had seen the accused being taken by the police from near the comfort station situated in the new bus stand, Thalassery. The testimony of PW3 has not been discredited. The testimony of PW3 also substantiates the case of the prosecution that the accused had infact been arrested from the place of occurrence as alleged by them. The seizure of the contraband has been proved by the testimony of PWs 1 and 2. The fact that the article seized is in fact ganja is established by Ext.P12 chemical report. In such circumstances, I do not find any reason(s) to disbelieve the prosecution case or find any infirmity in the findings of the court below. In the result, the appeal is found to be without any merits. The conviction and sentence passed by the court below by way of impugned judgment is confirmed and the appeal is dismissed.