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2023 DIGILAW 24 (JK)

Mohd. Yousuf Ganai v. State

2023-02-04

MOKSHA KHAJURIA KAZMI, SANJEEV KUMAR

body2023
JUDGMENT : [Sanjeev Kumar, J.] 1. This appeal is directed against the judgment of conviction and sentence dated 05.03.2018 recorded by the learned Principal Sessions Judge, Jammu (hereinafter referred to as the 'trial Court') in file No. 02/Spl Challan titled 'Narcotics Control Bureau, Jammu v. Mohd. Yousaf Ganaie' whereby the trial Court has convicted the appellant for the offences under sections 8/20 of Narcotic Drugs and Psychotropic Substances Act, 1985 ["NDPS Act"] and sentenced him to undergo rigorous imprisonment for fifteen(15) years and to pay a fine of Rs. 1.00 lacs, in default to undergo six months imprisonment. The Trial Court further ordered that the period of detention already undergone by the appellant shall be set off. 2. Before we advert to the grounds of challenge urged by Mr. Hussain, learned Senior Counsel representing the appellant/accused, to assail the impugned judgment and the order of sentence, it is necessary to first elude to complete resume of the prosecution case. 3. Intelligence Officer of Narcotic Control Bureau, Jammu received a secret information from a reliable source that the appellant/accused was carrying narcotics drugs and was going to board Swaraj Express Train on 31.01.2014 from Jammu Tawi Railway Station. On receiving the said information, the Zonal Director asked Sh. Satish Kumar Sharma, I/O to constitute a team and take action under law. The team so constituted proceeded towards Railway Station, Jammu. The SHO Police Station, Railway Station was also requested by the I.O. to provide police personnel for checking. The SHO directed S.I. Jagjeet Singh, HC Baj Singh and Constable Ranjeet Singh to join the NCB team at VIP Gate, Railway Station Jammu. A Naka was laid at the VIP Gate. The I.O. apprised the police personnel about the appellant/accused who was going to board Swaraj Express and was keeping narcotics drugs in his possession. The I.O. requested HC Baj Singh and Constable Ranjeet Singh to remain present as search witnesses. Thereafter, the I.O. also requested the two persons, namely Ravi Kumar son of Sh. Munna Lal resident of Mashi Mohalla, Sector 5, Trikuta Nagar, Jammu and Mohan Lal son of Sh. Hans Raj resident of Shanker Nagar, Channi Rama Jammu, who were passing by the aforesaid Naka, to become the search witnesses. Both of them agreed to remain present during the search. Munna Lal resident of Mashi Mohalla, Sector 5, Trikuta Nagar, Jammu and Mohan Lal son of Sh. Hans Raj resident of Shanker Nagar, Channi Rama Jammu, who were passing by the aforesaid Naka, to become the search witnesses. Both of them agreed to remain present during the search. Thereafter, the team of NCB and police, in presence of the above-named witnesses, started checking the identity cards and bags of the passengers. A about 10:45 am, one passenger with grey coloured bag on his shoulder came at the Naka point. On enquiry, he disclosed his name as Mohd Yousaf Ganai and shown his identity card. The I.O. introduced himself and other team members to the said person and requested him to open his bag for checking. The accused opened his bag which contained a blanket, a towel and two yellow coloured bags. On opening the said bags, four packets, which were wrapped with brown and white packing tape, were found in it. All the packets were opened in the presence of independent witnesses. Brown hard material, which was giving smell of charas, was found in these packets and a small quantity from each was taken and tested with the help of Drug Detection Kit which gave positive result for the presence of charas. The total weight of the recovered material was found to be 06.200 kg. The recovery memos were prepared and sent to the Central Revenues Control Laboratory ["CRCL"], New Delhi for examination. Thereafter the statement of the accused was recorded in which he admitted the recovery of 6.023 kg. charas from his possession. He was accordingly arrested. 4. After completion of the investigation, the challan was filed against the appellant/accused before the trail court. 5. The trail court, vide its order dated 03.06.2014, framed charges against the accused for commission of offences punishable under sections 8/20 NDPS Act. The accused pleaded not guilty to the changes and claimed to be tried. 6. To sustain the charge against the accused, the prosecution examined as many as 09 witnesses. After the closure of the prosecution evidence, the statement of the accused under section 342 Cr.P.C. was recorded and the accusation read over and explained to him. The accused denied the truth of the prosecution evidence but chose not to lead any evidence in rebuttal. 7. After the closure of the prosecution evidence, the statement of the accused under section 342 Cr.P.C. was recorded and the accusation read over and explained to him. The accused denied the truth of the prosecution evidence but chose not to lead any evidence in rebuttal. 7. The trial Court, after evaluating the evidence on record, vide its judgment dated 05.03.2018 held the accused guilty of offences under sections 8/20 of NDPS Act and, accordingly, sentenced him to undergo imprisonment along with fine as indicated hereinbefore. 8. The impugned judgment of conviction and order of sentence is challenged by the accused on various grounds, however, the grounds of challenge, which were laid emphasis by Mr. Hussain at the time of arguments, are dealt with in later part of this judgment. 9. Learned Senior Counsel, appearing for the appellant has submitted that the investigation in the instant case has not been conducted strictly in accordance with the NDPS Act. It is submitted that, after the samples were recovered, the same were kept in Malkhana. However, there is no entry regarding removal of the said sample from the Malkhana in the Malkhana Register when the accused was produced along with contraband in the court for first remand. It is further submitted that in the remand application made by the NCB, the seized contraband Lot-A, Lot-P and sample S-1 and S-2 were produced in the Court, but there is no entry made in the Malkhana register regarding the movement of the samples and the seized contraband. In absence of any such entry, it is not known which contraband and what samples were produced in the court. According to the learned Senior Counsel, it clearly indicates that samples of the case had been tempered with. He further submits that the prosecution witnesses produced have made contradictory statements regarding recovery and seizure and as such, the prosecution cannot be believed. The learned Senior Counsel has submitted that the prosecution has not complied with various mandatory provisions of the NDPS Act and the investigation has been conducted in sheer violation thereof. The accused is, thus, entitled to be acquitted. 10. Per contra, Mr. Shamsi, learned counsel for the respondent prays for dismissal of the appeal by submitting that the reasoning and findings given by the Court below being based upon material on record are not liable to be interfered with and appeal deserves to be dismissed. The accused is, thus, entitled to be acquitted. 10. Per contra, Mr. Shamsi, learned counsel for the respondent prays for dismissal of the appeal by submitting that the reasoning and findings given by the Court below being based upon material on record are not liable to be interfered with and appeal deserves to be dismissed. He submits that the learned Senior Counsel has failed to demonstrate any violation of the provisions of Sections 41, 42 and 43 of NDPS Act. Nor the appellant/accused has demonstrated the prejudice, if any, suffered by him due to non-compliance with the aforesaid provisions. Regarding non-compliance of Section 50 of the NDPS Act, Mr. Shamsi argues that since the recovery was made from the bag carried by the appellant/accused and not from personal search, as such, the provisions of Section 50 of the Act were not attracted. He submits that the trial Court has taken note of these submissions made on behalf of the appellant/accused and has rightly rejected the same on the touchstone of the law laid down by this Court as well as the Hon'ble Supreme Court. 11. Having heard learned counsel for the parties and perused the material on record, we find no good ground to interfere with the well reasoned judgment of the trial Court. 12. Mr. Hussain learned Senior Counsel, appearing for the appellant/accused, has not seriously objected to the findings of fact recorded by the trial Court on the basis of evidence on record. He, however, submits that due to serious procedural violations committed by the prosecution, the whole trial is vitiated and, therefore, the appellant/accused is entitled to acquittal. He has primarily raised the following points: (i) That while affecting seizure of alleged contraband from the appellant/accused, compliance with the provisions of Section 50 of NDPS Act is mandatory. The distinction between the personal search and the search from the bag carried by the accused is completely arbitrary and irrational and violative of Article 14 of the constitution of India and it is, therefore necessary to either read down section of the Act or declare it unconstitutional; (ii) That, in the instant case, complaint under section 200 Cr.P.C. for offences under sections 8/20 of NDPS was filed through the public prosecutor which was not permissible in law. The complaint ought to have been files by the intelligent officer himself who was the actual complainant in the matter; (iii) That, there is violation of Section 42 of the Act, in that, the information received by the Intelligence Officer Mr. Koushal Kumar, which was reduced in writing by him and regarding which, the Intelligence Officer gave information to the Zonal Director, NCB Jammu, does not indicate the exact time of receipt of information or dispatch of information to the Zonal Director. In the absence of such material on record, the right of the appellant/accused to make effective cross-examination was seriously impaired; (iv) That the seizure of the alleged contraband was not made on spot but the same was carried out in the nearby Police Station. The failure of the Investigating Officer to affect the seizure on spot and in the presence of independent natural witnesses vitiates the whole investigation and the trial; (v) That, in the absence of proper entries made in the Malkhana register while depositing and taking out of the contraband material on various occasions, is also a fatal defect which vitiates the trial as a whole. The absence of requisite entries is suggestive of possibility of tampering with the sample of contraband those were taken to the FSL for testing; and, (vi) That the statement of the accused recorded under section 67 of NDPS Act insofar as it pertains to the confession by the accused of the alleged offences is not admissible in evidence and, therefore, the trial Court committed serious illegality in relying upon the said statement to convict the appellant/accused. 13. Apart from laying great emphasis on the aforesaid points urged in support the appeal, Mr. Hussain, learned Senior Counsel, appearing for the alternative, submits that, if the Court does not agree with him and feels inclined to uphold the impugned judgment of the trial Court, it is a fit case where this Court should exercise its judicial discretion to consider reduction of sentence from 15 years to 10 years i.e., the minimum punishment prescribed for the offences allegedly committed by the appellant. Learned Senior Counsel places reliance on several judgments of the Hon'ble Supreme Court to support his points argued before us. 14. Learned Senior Counsel places reliance on several judgments of the Hon'ble Supreme Court to support his points argued before us. 14. Since learned Senior Counsel appearing for the appellant has not seriously agitated or objected to the findings of fact recorded by the trial Court on the basis of evidence on record, as such, we have also decided not to venture in re-appreciation of evidence on record. Otherwise also, the recovery of contraband has been affected from the conscious possession of the appellant in the presence of independent witnesses. Its safe custody, quantity and nature is proved beyond reasonable doubt by the prosecution. 15. The Intelligence Officer of NCB Jammu, namely Koushal Kumar received a secret information from a reliable source that the appellant/accused, who was carrying narcotic drug, was going to board Swaraj Express Train on 31.01.2014 from Jammu Tawi Railway Station. This information was conveyed in writing vide EXT-P-1 to Zonal Officer NCB Jammu. On the directions of Zonal Officer, a team was constituted and the Intelligence Officer Koushal Kumar was appointed as the seizing/case officer of the case. The NCB team proceeded towards Railway Station and requested the SHO Police Station, Railway Station to provide police personnel for checking/surveillance. Accordingly, the SHO directed SI Jagjeet Singh, HC Baj Singh and Constable Ranjit Singh of J&K Police to join the NCB team at VIP Gate Railway Station, Jammu. I.O. Koushal Kumar disclosed his identity to the Police personnel and briefed them about the accused who was likely to board Swaraj Express and was expected to carry narcotic drug with him. Two persons, namely Ravi Kumar and Mohan Lal, who were passing by the Naka point, were requested to witness the search operation. The process started and the team of NCB in association with police personnel started checking the identity cards and the bags carried by the passengers. It was about 10:45 am, one passenger with grey coloured bag on his shoulder came at the Naka point. On enquiry, he revealed his name as Mohd. Yousuf Ganie, the appellant herein. He was requested to open his bag for checking. The appellant opened his bag which contained a blanket, a towel and two yellow coloured bags. Both the bags were opened which were found to contain four packets wrapped with brown and white packing tape. On enquiry, he revealed his name as Mohd. Yousuf Ganie, the appellant herein. He was requested to open his bag for checking. The appellant opened his bag which contained a blanket, a towel and two yellow coloured bags. Both the bags were opened which were found to contain four packets wrapped with brown and white packing tape. On enquiry, the appellant told the NCB team that the material in the bag was charas and was to be taken to Mumbai. A small quantity of material was taken from each packets and tested with Drug Detection Kit which gave positive results for charas. Since the place where the search operation was carried was crowded, as such, the recovery of the contraband was made and its weight taken in the nearby GRP Police Station. The seized material was sent to CRCL for chemical examination and was found by the experts to be charas. The weight of the contraband was found to be 06.200 kg. After completion of the investigation, offences under sections 8/20 of NDPS Act were established and a complaint was made before the trial Court. The independent prosecution witnesses, namely Ravi Kumar and Mohan Lal have supported the recovery and proved all the documents of recovery signed by them at the time of the seizure. The sealing of samples and their safe custody is also amply proved. The seals, which were put, at the time of seizure on the contraband and the samples taken out of it, have been proved to be intact when these samples were received in the CRCL for chemical examination. 16. Without going much into the details of the statements made by the witnesses, suffice it to say that, in the instant case, the trial Court has, on the basis of evidence on record, found that the contraband was recovered from the conscious possession of the appellant and the seizure of the contraband was affected in the presence of the independent witnesses and in compliance with the procedure laid down in the NDPS Act. The trial Court has also found, on the basis of satisfactory and cogent evidence on record, that the samples were properly sealed and the samples so seized reached CRCL intact. The trial Court has also found, on the basis of satisfactory and cogent evidence on record, that the samples were properly sealed and the samples so seized reached CRCL intact. Once the recovery of contraband from the conscious possession of the accused is proved; the samples taken out of the contraband are found properly sealed; the sealed samples reached the Drug Testing Laboratory with seals intact; and the contraband is found to be a narcotic drug, there remains nothing more to be proved to connect the accused with the commission of offences under sections 8/20 NDPS Act. This exactly has happened in the instant case. There is sufficient evidence on record which clearly proves that the contraband item, that was found to be charas, weighing more than 6 kg, was recovered from the bag carried by the appellant/accused. There is no evidence with regard to tampering of the seals put on the samples collected by the Intelligence Officer for chemical examination by CRCL. There is nothing on record which would persuade us to agree with the contention of learned Senior Counsel that the manner in which the contraband was handled by the respondent puts serious doubt on the safe custody of the contraband. 17. The learned trial Court has considered the aforesaid aspect at length and has found the necessary entries made in the movement register maintained by the NCB. The date on which the samples were deposited in the Malkhana and the day it was taken out for sending it to CRCL are clearly recorded. The entries have been duly proved by the prosecution. In the face of aforesaid material on record, the trial Court had no option, but to hold the appellant guilty of commission of offences under sections 8/20 of NDPS Act. We find no reason to take a view contrary to the one taken by the trial Court. 18. Leaned Senior Counsel appearing for the appellant seems to be convinced about the findings of fact recorded by the trial Court and, thus, laid more emphasis on his argument pertaining to the violation of inbuilt procedural safeguards contained in the various provisions of NDPS Act, in particular, Sections 42, 43 and 50 of the NDPS Act. It would be appropriate to reproduce Section 42 of NDPS Act. It reads thus: "42. It would be appropriate to reproduce Section 42 of NDPS Act. It reads thus: "42. Power of entry, search, seizure and arrest without warrant or authorization:- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset: (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and, (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior". 19. From a reading of Section 42, it is evident that any officer superior in rank to a peon, sepoy or constable of the Departments of Central Excise, Narcotics, Customs, Revenue Intelligence or any other Department of the Central Government including Paramilitary or Armed Forces as is empowered in this behalf by general or special order of the Central Government or the State Government, receives an information given by any person and taken down in writing that any narcotic drug or psychotropic substance in respect of which an offence punishable under NDPS Act has been committed, he may arrest any person and seize any contraband or document or other article in a conveyance or vessel or building etc. The requirement of Section 42 of the Act in the context of the argument raised by learned Senior Counsel for the appellant is three fold: (i) The information received by the authorized officer from any person in respect of commission of offence under the NDPS Act is required to be reduced in writing as is provided under section 42(1) of the Act; (ii) He is required to record reasons for his belief that an offence in relation to any narcotic drug or psychotropic substance punishable under the Act has been committed; and, (iii) He shall, within 74 hours, send a copy of the information to the immediate official superior. 20. However, when seizure, in terms of Section 43 of the Act is to be effected from a public place or in transit, no such requirement as enumerated above are required to be complied with. 21. The Hon'ble supreme court in Karnail Singh v. State of Haryana, (2009) 8 SCC 539 , had drawn a distinction, the supreme court made the following observations in para(26) of the judgment: "26. 21. The Hon'ble supreme court in Karnail Singh v. State of Haryana, (2009) 8 SCC 539 , had drawn a distinction, the supreme court made the following observations in para(26) of the judgment: "26. The material difference between the provisions of Sections 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 of the Act, 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 him to be unlawful". 22. In the instant case, the Intelligence officer Koushal Kumar received an information from a secret source. He reduced it in writing and sent it to his immediate superior officer i.e. Zonal Director, NCB Jammu. This has been proved by the Intelligence Officer Koushal Kumar when he entered the witnesses box. He has been thoroughly cross-examined and he has firmly stood by his statement. There is no contrary evidence brought out, either during cross-examination of the prosecution witnesses by the Defence or otherwise which is sufficient to impeach the credibility of the Intelligence Officer Koushal Kumar. In these circumstances, it is difficult for us to agree with Mr. Hussian that there has been breach of Sections 42 and 43 of the NDPS Act. The argument of Mr. Hussain that the prosecution, who is required to prove its case beyond any reasonable doubt, has failed to prove the receipt and dispatch of the information received by the Intelligence Officer Koushal Kumar from a reliable source, cannot be accepted for the simple reason that no such question was ever put to the prosecution witness Koushal Kumar, who, in his examination-chief- had categorically stated that the moment he received the information from a reliable source, he reduced it in writing and sent a written communication to his superior i.e. the Zonal Director NCB, Jammu immediately. It is on receipt of this information by the Zonal Director, NCB Jammu, Intelligence Officer was directed to constitute a team to proceed to the spot where the appellant was expected to reach for boarding Swaraj Express. It is on receipt of this information by the Zonal Director, NCB Jammu, Intelligence Officer was directed to constitute a team to proceed to the spot where the appellant was expected to reach for boarding Swaraj Express. Otherwise also, law is well settled that mere infraction of Sections 42 and 43 does not vitiate the trial, unless a clear prejudice to the accused on account of such non-compliance is pleaded and demonstrated. Learned Senior Counsel appearing for the appellant could not point out any prejudice having been caused to the appellant on account of alleged non-compliance of Sections 42 and 43 of the Act. This is apart from the fact that since the recovery was made in a public place, as such, Sections 42 and 43 were attracted. There was, thus, no obligation on the I.O. to either reduce the information in writing or sent it to his superior officer as those are the requirements provided under section 42 of the Act. 23. So far as the powers of officer of the NCB of entry, search, seizure and arrest without warrant are concerned, it has been brought to our notice that two Notifications have been issued on 30.10.2019 by the Ministry of Finance (Department of Revenue) which clearly indicate that the powers under sections 42 and 53 are invested in the officers of and above the rank of Inspectors in the Central Board of Direct Taxes and Customs, Central Bureau of Narcotics, Directorate of Revenue Intelligence, Central Economic Intelligence Bureau and of and above the rank of Jr. Intelligence Officer in Narcotic Control Bureau. That being the position, the argument of Mr. Hussian that the Intelligence Officer of NCB, in the absence of proper authorization under section 42, is not competent to affect any search, seizure or arrest, is factually incorrect and has no substance to sustain. Needless to say that, in view of the Constitution Bench Judgment in the case of Mukesh Singh v. State (Narcotic Branch of Delhi), (2020) 10 SCC 120 , it is trite that, a person, who initiates detection of crime, can also investigate into the offence, more particularly, when there is no express bar under the NDPS Act for doing so. That being the clear position of law, we find no substance in the argument of Mr. That being the clear position of law, we find no substance in the argument of Mr. Hussain that the Intelligence Officer, who initiated the search and seizure and later investigated the case, was not authorized under sections 42 , 43 and 53 of the Act. 24. Insofar as the argument of Mr. Hussain, learned Senior Counsel appearing for the appellant that the entire trial is vitiated for not complying with the procedural safeguards provided under section 50 of the Act, suffice it to say that, in the instant case, the recovery of the contraband was not made from personal search of the appellant, but was made from the bag carried by the appellant. Section 50 of NDPS Act, it is now conclusively held by the Supreme Court, is not attracted when nothing is recovered on personal search. The recovery affected from a bag which was carried by and was in conscious possession of the accused, does not require compliance of Section 50 of the Act. 25. Dealing with the aforesaid question, Hon'ble Supreme Court, in the case of Than Kunwar v. State of Haryana, 2020 (5) SCC 260 , in paragraphs (20), (21) and (22), has held thus: "20."In Baljinder Singh v. State of Punjab, 2019 SCC Online P&H 2119, this Court elaborately considered the matter with reference to the applicability of Section 50 in a case where there is a personal search also. 21. This was the case where 7 bags of poppy husk each weighing 34 kg. were found from the vehicle. A personal search of the accused was undertaken after their arrest which did not lead to any recovery of contraband. The High Court found violation of Section 50 as the personal search of the accused was not conducted before the Magistrate/Gazetted Officer and set aside the conviction of the respondent. This Court, in Baljinder Singh (supra), went on to consider the law laid down by the Constitution Bench in State of Punjab vs. Baldev Singh and, inter alia, held as follows: "16. This Court, in Baljinder Singh (supra), went on to consider the law laid down by the Constitution Bench in State of Punjab vs. Baldev Singh and, inter alia, held as follows: "16. The conclusion (3) as recorded by the Constitution Bench in para 57 of its judgment in Baldev Singh's case (supra) clearly states that the conviction may not be based "only" on the basis of possession of an illicit article recovered from personal search in violation of the requirements under section 50 of the Act, but if there be other evidence on record, such material can certainly be looked into. 17. In the instant case, the personal search of the accused 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 Section 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 Section 50 of the Act as far as "personal search" was concerned, no benefit can 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 conclusion (3) as aforesaid. 18. The decision of this Court in Dilip v. State of M.P., (2007) 1 SCC 450 , however, has not adverted to the distinction as discussed hereinabove and proceeded to confer advantage upon the accused even in respect of recovery from the vehicle, on the ground that the requirements of Section 50 relating to personal search were not complied with. In our view, the decision of this Court in the said judgment in Dilip's case (supra) is not correct and is opposed to the law laid down by this Court in Baldev Singh's case (supra) and other judgments." 22. Having regard to the judgment by the three-Judge Bench, which directly dealt with this issue, viz., the correctness of the view in Dilip (supra) reliance placed by the appellant on paragraph 16 may not be available. As already noticed, we are not oblivious of the observation which has been made in the other three Judge Bench judgment of this Court in SK. Raju (supra), which it appears, was not brought to the notice to the Bench which decided the case later in Baljinder Singh (supra). As already noticed, we are not oblivious of the observation which has been made in the other three Judge Bench judgment of this Court in SK. Raju (supra), which it appears, was not brought to the notice to the Bench which decided the case later in Baljinder Singh (supra). We notice however that the later decision draws inspiration from the Constitution Bench decision in Baldev Singh (supra). We also notice that this is not a case where anything was recovered on the alleged personal search. The recovery was effected from the bag for which it is settled law that compliance with Section 50 of the Act is not required". 26. In view of the aforesaid judgment, the law is now well settled that in a case where the contraband is recovered from a bag, brief case, container etc. in conscious possession of the accused, provisions of Section 50 of NDPS Act are not attracted. It is only where a personal search of the accused is involved, compliance of Section 50 becomes mandatory. It is also now equally well settled that if a personal search of the accused does not lead to any recovery of contraband and the contraband is recovered from a bag carried by the accused, the search and seizure is not vitiated for non-compliance of Section 50 of the NDPS Act. 27. In the instant case, we do not find any personal search of the appellant having been carried by the respondent/State. As has come in the evidence, the appellant was stopped at the VIP Gate and the bag carried by him was searched. The contraband i.e. charas, weighing more than 6 kg. was recovered from the packets contained in the bag. In that view of the matter, and in view of the clear position of law, Section 50 of the NDPS was not attracted. The trial Court has aptly dealt with this contention of the appellant and rejected the same on the touchstone of legal position settled by the Hon'ble Supreme Court. 28. The argument of Mr. Hussian that the confessional statement recorded under section 67 of the NDPS Act is not admissible in evidence and, therefore, the reliance placed by the trial Court on the statement of the appellant is erroneous and this has the effect of vitiating the entire trial, is not completely acceptable. 28. The argument of Mr. Hussian that the confessional statement recorded under section 67 of the NDPS Act is not admissible in evidence and, therefore, the reliance placed by the trial Court on the statement of the appellant is erroneous and this has the effect of vitiating the entire trial, is not completely acceptable. We, however, agree with learned Senior Counsel that the confessional statement of the accused recorded under section 67 of NDPS Act by the Intelligence officer of NCB is not admissible in evidence, but we are not inclined to accept the argument of Mr. Hussian that the reliance placed by the trial Court, inter alia, on the confessional statement of the appellant to record his conviction, has vitiated the entire trial and has the effect of rendering the judgment of the trial Court unsustainable in law. 29. We have carefully gone through the impugned judgment passed by the trial Court and we are of the clear view that there is sufficient evidence on record to connect the accused with the offences under section 8/20 of NDPS Act independently of his confessional statement recorded under section 67 of the Act. 30. It is true that, in view of the law laid down by the Supreme Court in the case of Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1 , the Officers empowered under section 53 of the NDPS Act are 'Police Officers' for the purpose of attracting bar under section 25 of the Evidence Act, 1872 against admissibility of a confession made to a Police Officer and, therefore, any confessional statement made under section 67 of the Act to the Officer empowered under section 53 of NDPS Act cannot be taken into account in order to convict an accused except to the extent found relevant under section 53 (a) of the Act. While answering the reference in Tofan Singh's case (supra), the majority opinion authored by justice Rohinton has, in paragraphs (158), (158.1) & (158.2) of the judgment recorded his conclusions as under: “158. While answering the reference in Tofan Singh's case (supra), the majority opinion authored by justice Rohinton has, in paragraphs (158), (158.1) & (158.2) of the judgment recorded his conclusions as under: “158. We answer the reference by stating: 158.1 That the officers who are invested with powers under section 53 of the NDPS Act are “police officers” within the meaning of section 25 of the evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of sections 25 of the Evidence Act, and cannot be taken into account in order to convict on accused under the NDPS Act. “158.2.That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act". 31. In the same judgment, the Supreme Court has referred to S.O. No. 3901(E) and S.O. No. 3899(E), dated 30.10.2019 which clearly indicate that the powers under sections 42 and 53 of the NDPS Act are invested in the officers of and above the rank of Jr. Intelligence Officer in Narcotic Control Bureau. In the instant case, the search and seizure has been affected and the investigation has been made by the Intelligence Officer of NCB, who, in terms of the aforesaid notifications, is vested with the powers under section 42 of the NDPS Act. In view of the law laid down in Tofan Singh's case (supra), the investigating officer in the instant case shall be deemed to be a Police Officer for the purpose of attracting the bar under section 25 of the Evidence Act 1872 and, therefore, the statement of the appellant recorded under section 67 of the Act was not admissible in evidence. 32.As stated above, the conviction of the appellant, in the instant case, is not based solely on the confessional statement recorded under section 67 of the NDPS Act, but is also based on the evidence brought on record by the prosecution to connect the appellant with the commission of offences under sections 8/20 of the Act. We, therefore, reject the argument of Mr. Hussain that, in view of the inadmissibility of the confessional statement of the appellant recorded under section 67 of the Act, the conviction of the appellant is completely vitiated and that the appellant is entitled to acquittal. 33. Equally untenable is the argument of Mr. We, therefore, reject the argument of Mr. Hussain that, in view of the inadmissibility of the confessional statement of the appellant recorded under section 67 of the Act, the conviction of the appellant is completely vitiated and that the appellant is entitled to acquittal. 33. Equally untenable is the argument of Mr. Hussain that the Public Prosecutor was not authorised to lay the complaint before the trial Court. From a reading of the judgment impugned, it is evident that no such question challenging his authority and competence to present complaint, was put to the investigating officer when he appeared in the witness box, nor the same was urged before the trial court at the argument stage. Otherwise also, even if we were to agree with the Mr. Hussian that the complaint should have been filed before the Court by the officer authorized to do so and not by the Public Prosecution, we find it only an irregularity which does not vitiate the trial, in any manner, more so, when the complaint was filed by the I.O. though may have been presented through Public Prosecutor and when there is no prejudice caused to the appellant. 34. This brings us to the last alternative submission made by Mr. Hussain on the quantum of sentence. He submits that, having regard to the fact that it was the first offence ever committed by the appellant and that he is more than 60 years' old, this Court should take a lenient view in the matter and reduce the sentence to the period undergone. We have given thoughtful consideration to this aspect of the matter. Indisputably, this is the first offence ever committed by the appellant which involves the possession and transportation of more than 6 kg of charas. He is reportedly a retired sepoy from Indian Army and has a wife and three daughters to take care of. The appellant who was arrested on 31.01.2014 is in jail for the last nine years. These facts pleaded by the appellant have not been rebutted by the respondent/State. 35. He is reportedly a retired sepoy from Indian Army and has a wife and three daughters to take care of. The appellant who was arrested on 31.01.2014 is in jail for the last nine years. These facts pleaded by the appellant have not been rebutted by the respondent/State. 35. Having regard to the aforesaid mitigating circumstances and more particularly, having regard to the fact that the appellant is the only bread winner for the family consisting of a wife and three daughters, we are inclined to take a more lenient view and reduce the sentence to a period of 10 years i.e. the minimum prescribed for the offences under section 8/20 of NDPS Act. Since trial Court has already imposed minimum fine of Rs. 1.00 lac and in default thereof, further imprisonment for a period of six months, we maintain that part of the sentence. 36. For the foregoing reasons, we do not find any merit in the appeal insofar as it challenges the conviction of the appellant. We, however, for the reasons stated above, modify the sentence imposed and direct that the convict shall undergo rigorous imprisonment of ten years and a fine of Rs. 1.00 lac for the offences under section 8/20 of the NDPS Act and, in default of fine, the appellant shall undergone further imprisonment for a period of six months. The period of detention already undergone by the appellant during investigation, trial and the pendency of this appeal shall be set off under rules. Registry is directed to communicate the judgment to the trial court and the Superintendent of the Jail in which the appellant is confined.