JUDGMENT : This Criminal Appeal is filed by the appellant, who was the accused in NDPS Sessions Case No.8 of 2005, on the file of the Special Sessions Judge for Trial of the cases under the Narcotic Drugs and Psychotropic Substance Act, 1985-cum-I Additional Sessions Judge, East Godavari District, Rajahmundry (hereinafter will be referred to as “Special Judge”), challenging the judgment, dated 02.07.2010, where under the learned Special Judge, found the accused guilty of the offence under Section 8(c) r/w 20(b)(ii)(C) of Narcotic Drugs and Psychotropic Substance Act, 1985 (“N.D.P.S. Act” for short) and convicted him under Section 235(2) of the Code of Criminal Procedure Code (“Cr.P.C.” for short) and after questioning him about the quantum of sentence, sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- and in default to suffer simple imprisonment for one year. 2. The parties to this Criminal Appeal will hereinafter be referred as described before the trial Court for the sake of convenience. 3. The State, represented by Inspector of Police, Rajavommangi Circle, East Godavari District, filed charge sheet in Crime No.10 of 2004 of Rajavommangi Police Station under Section 8(c) r/w 20(b)(1) of N.D.P.S. Act, 1985 alleging in substance as follows: (i) The accused is resident of Bhogasa Village, Bhasavakalyana Mandapam Taluk, Bheedar District of Karnataka State. He is a driver of Lorry bearing No.MH 18A 7501. L.W.1- Kanigiri Chakrapani and L.W.2-Behavara Gavarraju are the mediators to the occurrence. L.W.3-Bhyrun Abdul Davoodh is the Kirana shop owner, who weighed Ganja packets in the presence of police and revenue officials. L.W.4-Thatituri Veerababu is the Photographer. L.W.5-M. Satyananda Rao is the then Mandal Revenue Officer, Rajavommangi. L.W.6- C. Satyanandam is the Government Chemical Examiner for Prohibition and Excise, Kakinada. L.W.7-G. Satyanarayana is the then Sub-Inspector of Police, Rajavommangi Police Station. L.W.8-Y. Srinivasa Rao is the then Inspector of Police, Rajavommangi Police Station. (ii) On 09.03.2004 at about 11-00 a.m., on receipt of information regarding the fact that the Ganja loaded lorry driven by the accused dashed a tree in the outskirts of Sarabhavaram Village, near Boyapadu-Kakarapadu, the Inspector of Police, along with Sub-Inspector of Police and the mediators proceeded to the spot and found the accused with an injury on his forehead. L.W.8, the Inspector of Police questioned the accused. Firstly, he gave prevaricating replies and finally disclosed his identity particulars. L.W.8, the Inspector of Police questioned the accused. Firstly, he gave prevaricating replies and finally disclosed his identity particulars. He confessed that he purchased 74 packets of Ganja from an unknown person in between Narsipatnam and K.D. Peta forest area at the rate of Rs.100/- per Kg and accordingly he purchased total 430 Kgs. of Ganja for Rs.43,000/- with a view to sell the same at Thiruchanur for Rs.1,000/- per Kg. Ganja to get profit to earn money. While, he is brining 74 packets of Ganja bundles in his lorry bearing No.MH 18A 7501 from K.D. Peta via Rajavommangi and after passing Kakarapadu-Boyapadu junction, he failed to control the vehicle in high speed and dashed a road side Boda tree, as such, he received minor injury. He also revealed that along with him, another driver Venkat and one Basaga Govind Ganapath were present, but they absconded after the accident. The Inspector of Police recorded the statement of the accused under the cover of Mahazarnama in the presence of mediators from 1-00 p.m. to 2-00 p.m., on 09.03.2004 and he seized 74 packets of Ganja bundles under the cover of mediatornama. On 09.03.2004 at 3-00 p.m., the Sub-Inspector of Police, at the instructions of Inspector of Police, registered the mahazarnama as a case in Crime No.10 of 2004 under Section 8(c) r/w 20(b)(1) of N.D.P.S. Act. L.W.8 personally investigated into the case. L.W.3 weighed 74 packets of Ganja and L.W.4 Photographed the Ganja bundles in the police station. A mahazar was drafted for weighing of Ganja from 4-00 p.m. to 5-00 p.m. on 09.03.2004. The Inspector of Police arrested the accused and sent him for remand. The samples were sent for chemical analysis with a letter of advice to the Government Chemical Examiner for Prohibition and Excise, Kakinada, who opined that the samples are of Ganja. In spite of best efforts, the investigating officer could not trace the other absconding accused. Hence, the accused is liable for punishment under Section 8(c) r/w 20(b)(1) of N.D.P.S. Act. 4. The learned Special Judge took cognizance of the offence under Section 8(c) r/w 20(b)(ii)(C) of N.D.P.S. Act. In spite of best efforts, the investigating officer could not trace the other absconding accused. Hence, the accused is liable for punishment under Section 8(c) r/w 20(b)(1) of N.D.P.S. Act. 4. The learned Special Judge took cognizance of the offence under Section 8(c) r/w 20(b)(ii)(C) of N.D.P.S. Act. After appearance of the accused and after complying the necessary formalities under Section 207 of Cr.P.C., by following the procedure under Section 228 of Cr.P.C., the learned Special Judge framed charge under Section 8(c) r/w 20(b(ii)(C) of N.D.P.S Act against the accused, explained to him in Telugu, for which he pleaded not guilty and claimed to be tried. 5. To bring home the guilt against the accused, the prosecution, during the course of trial, examined P.W.1 to P.W.6 and got marked Ex.P.1 to Ex.P.8 and the defence counsel during the cross examination of P.W.6, got marked Ex.D.1 and further the prosecution got marked M.O.1 to M.O.74. After closure of the evidence of prosecution, accused was examined under Section 313 of Cr.P.C. with reference to the incriminating circumstances appearing in the evidence let in by the prosecution, for which he denied the same and he did not examine any defence witnesses. 6. The learned Special Judge, on hearing both sides and on considering the oral as well as documentary evidence, found the accused guilty of the charge and accordingly, convicted and sentenced him as above. Aggrieved by the conviction and sentence, the unsuccessful accused, filed the present Criminal Appeal, challenging the judgment of the trial Court. 7. Before framing the point for determination, it is necessary to make a mention here that according to the judgment of the trial Court after the cognizance was taken and after appearance of the accused, he absconded from the process and later his presence was secured by issuing Non-Bailable Warrant and accused was in custody during the course of trial. Apart from this, after filing of the appeal, the accused got the imprisonment imposed by the trial Court suspended and this Court in Criminal A.M.P.No.1432 of 2010 ordered to suspend the sentence of imprisonment imposed against the appellant by directing his release i.e., executing a bond for Rs.20,000/- together with two sureties for a like sum each to the satisfaction of the trial Court. 8. 8. Now, in deciding this Criminal Appeal, the points for determination are as follows: (1) Whether the prosecution before the Court below proved that the accused was in possession of 430 Kgs. of Ganja on 09.03.2004 at 11-00 a.m., near Boyapadu- Kakarapadu turning at the outskirts of Sarabhavaram Village in contravention of the provisions of N.D.P.S. Act? (2) Whether the prosecution before the Court below proved the charge against him beyond reasonable doubt? (3) Whether there are any grounds to interfere with the judgment of the learned Special Judge? POINT NOS.1 TO 3:- 9. Sri Saranu Phani Teja, learned counsel, representing Sri Venkateswara Rao Gudapati, learned counsel appearing for the appellant, would contend that without properly appreciating the evidence, the learned Special Judge went on to convict the accused. The prosecution did not prove before the Court below that the accused was the driver of the crime vehicle at the time of offence in question. The learned Special Judge did not appreciate the evidence of P.W.1 to P.W.6 properly. The defence of the accused before the Court below was denial and he contended that he does not know the Telugu language and the entire trial was vitiated because he did not understand the Telugu language. The learned Special Judge did not look into this aspect. The investigating agency did not follow the search and seizure in accordance with the provisions of the N.D.P.S. Act, as such, for non following of the mandatory provisions, search and seizure was vitiated. The crime vehicle was not produced before the Court below. The evidence of P.W.6 is that he served a notice on the accused in Telugu language, but, in fact, the accused was not capable of understanding the Telugu language. There are serious irregularities and improbabilities in the evidence of the prosecution witnesses and in spite of it, the learned Special Judge proceeded to convict the accused, a such, the Criminal Appeal is liable to be allowed by setting aside the judgment of the Special Judge. 10. Sri Y. Jagadeeswara Rao, learned counsel, representing the learned Public Prosecutor, would contend that the evidence of P.W.1, the Inspector of Police and revenue officials is consistent with each other. When the accused was driving the lorry in which he got loaded Ganja, it met with an accident and accused received minor injury and on account of the incident only the facts came into light. When the accused was driving the lorry in which he got loaded Ganja, it met with an accident and accused received minor injury and on account of the incident only the facts came into light. The investigating officer duly lifted samples from each and every bundle on the date of offence and on the next date in the presence of mediators and the opinion of chemical analyst is that the samples were of Ganja. Accused participated in the trial throughout and though he belonged to Karnataka State, he knows the Telugu language and the learned Special Judge recorded cogent reasons to negative the contention of the defence counsel. The investigating officer followed the mandatory provisions of the N.D.P.S. Act and the learned Special Judge did not find favour of the defence of the accused in this regard. The evidence on record categorically proved that the accused was in possession of huge quantity of Ganja which was of commercial quantity and the judgment of the learned Special Judge was by appreciating the evidence in a proper perspective, as such, the Criminal Appeal is liable to be dismissed. 11. P.W.1 before the Court below is one of themediators. P.W.2 is the person, who claimed to have weighed the Ganja in the police station. P.W.3 is a Photographer, who took photos of the contraband in the police station. P.W.4 is the then Sub-Inspector of Police, Rajavommangi Police Station. P.W.6 is the then Tahsildar. P.W.1, P.W.4, P.W.5 and P.W.6 are the witnesses to the occurrence. 12. The substance of the evidence of P.W.1 is that on 09.03.2004 he, Inspector of Police, Rajavommangi, L.W.2 another mediator and L.W.5 and police staff went to Boyapadu- Kakarapadu center and they found a lorry which was dashed against a tree. One person was found there with injury on the back of his head. He revealed his identity on questioning by the Inspector of Police and that he purchased Ganja near Narsipatnam and got the same in the lorry to sell the same and in the transit accident occurred. He revealed that another person and lorry driver escaped. He disclosed his name as Suresh and he is resident of Karnataka State. Number of Lorry is 7501. The Inspector of Police verified the lorry and found 74 packets in the cabin of the lorry. The person revealed that there is Ganja in the packets. He (P.W.1) drafted a mediators report. He revealed that another person and lorry driver escaped. He disclosed his name as Suresh and he is resident of Karnataka State. Number of Lorry is 7501. The Inspector of Police verified the lorry and found 74 packets in the cabin of the lorry. The person revealed that there is Ganja in the packets. He (P.W.1) drafted a mediators report. Ex.P.1 is the mahazarnama. In Ex.P.1, he, B. Gavarraju, L.W.2 and L.W.5-M. Satyananda Rao, M.R.O., put their signatures. The Inspector of Police and accused also signed in Ex.P.1. Witness identified the accused as the person, who was found with injury on 09.03.2004. He further testified that accused and contraband was brought to the station and one Muslim person was called at 3-00 p.m., who weighed the Ganja. The weight of Ganja from all 74 packets is about 400 Kgs. Police lifted 150 grams of Ganja from each packet out of 74 packets. He drafted another mediators? report which is Ex.P.2. On 10.03.2004 again he was called by Inspector of Police at 8-00 a.m. By then, M.R.O. was there. Samples were taken at the police station into the plastic cover and they were packed with seals with identity slips. Signatures of another mediator and M.R.O. were obtained. Another mediators report is drafted which is Ex.P.3. Witness deposed that as per Ex.P.2, samples were lifted into two packets and as per Ex.P.3 samples were lifted from 72 packets. M.O.1 to M.O.74 are sample packets. He can identify the lorry. Photograph shown to him is of the lorry (witness identified the lorry in the photograph). 13. Coming to the evidence of P.W.2, he testified the fact that he is running a Kirana shop. On 09.03.2004 at 4-00 p.m., at request of police, he went to the police station with scales and weights. He weighed 74 packets available there and the total weight was of 428 or 430 Kgs. About 150 grams were lifted as a sample from each packet. Apart from P.W.1 and police, M.R.O., another person was present and his name is Suresh. He can identify him. Witness deposed that accused is like the said Suresh, who was seen by him on 09.03.2004. 14. P.W.3 spoken to the fact that at request of the police, on 09.03.2004 at 4-00 p.m., he photographed the Ganja packets. He handed over the photographs and negatives to the Inspector of Police. Ex.P.4 is the positive photographs. He can identify him. Witness deposed that accused is like the said Suresh, who was seen by him on 09.03.2004. 14. P.W.3 spoken to the fact that at request of the police, on 09.03.2004 at 4-00 p.m., he photographed the Ganja packets. He handed over the photographs and negatives to the Inspector of Police. Ex.P.4 is the positive photographs. 15. The evidence of P.W.4, the then Sub-Inspector of Police, is that on 09.03.2004 at 11-00 a.m., he received information about the lorry accident. He intimated the same to the Inspector of Police, Rajavommangi. It was learnt that there was transport of Ganja in the lorry involved in the accident. At the instructions of Inspector of Police, he secured mediators and M.R.O. After that Inspector of Police, he and mediators, M.R.O., proceeded to the lorry bearing No.MH 18A 7501 and found that it dashed a tree at Boyapadu-Kakarapadu junction. They found a person with injuries. He revealed his identity as that of accused. He gave his confession about the transportation of Ganja. Mediators report was drafted which is Ex.P.1. They went to the Rajavommangi Police Station along with lorry, accused and 74 packets of Ganja. He registered the mahazarnama at the instructions of Inspector of Police, as a case in Crime No.10 of 2004. Ex.P.5 is the F.I.R. He handed over copy of FIR to Inspector for investigation. Witness identified the accused as the person who was present at the lorry. 16. P.W.5 is the then Inspector of Police and his evidence in substance is that on information about the accident of lorry, he secured the mediators, P.W.1 and M.R.O and proceeded to Boyapadu Village and found the lorry in damaged condition. They found Ganja packets. They found one person at the lorry, who disclosed his identity as accused. He claimed that he is the driver of the lorry and one Govind Ganapathi also joined with him and they purchased the Ganja from some unknown person. It was of 430 Kgs. and they kept it in 74 packets. After passing Kakarapadu, the lorry dashed the tree and he received simple injuries. P.W.5 further testified that a mediators report was drafted in the presence of mediators and M.R.O. M.R.O. served a notice to the accused before searching 74 packets of Ganja under Ex.P.8. After mahazar, he arrested the accused and brought the property to the station. After passing Kakarapadu, the lorry dashed the tree and he received simple injuries. P.W.5 further testified that a mediators report was drafted in the presence of mediators and M.R.O. M.R.O. served a notice to the accused before searching 74 packets of Ganja under Ex.P.8. After mahazar, he arrested the accused and brought the property to the station. The Sub- Inspector of Police at his instructions registered F.I.R. He proceeded to the scene of offence, prepared rough sketch, which is Ex.P.6. He got secured P.W.2 and P.W.3 and got weighed Ganja and got photographed the Ganja. He lifted 150 grams of Ganja from two packets on that day under Ex.P.2, mahazar. On 10.03.2004 again he secured mediator and M.R.O. and got lifted samples 72 in number from 72 packets under Ex.P.3, mahazar. Later, he forwarded the accused to the Court for remand. He sent the material objects i.e., seized samples to the chemical examiner who opined that they are all Ganja. Ex.P.7 is the chemical analysis report. Ex.P.4 is photograph of the lorry which was taken at the scene. As the lorry was not in a fit condition, they did not produce before the Court. Accused was the person, who was arrested by him on that day. 17. P.W.6, the then M.R.O., spoken to the fact that at request of Sub-Inspector of Police, he went to the police station of Rajavommangi. From there he, Inspector of Police, Sub-Inspector of Police and mediators proceeded to Kakarapadu- Boyapadu and found a lorry which dashed a tree. Its number is MH 18A 7501. They found a person near the lorry. He revealed his identity as that of accused. He claimed that he is the driver of the said lorry. His confession was recorded under mahahzar. There were 74 packets in the lorry covered with tarpaulin. They brought the accused to the police station after Ex.P.1. After he came back to Rajavommangi again he was called to police station. A notice was served on the accused asking his consent to weigh the contraband which is Ex.P.8. Accused signed in Ex.P.8. All 74 packets were verified and a Kirana merchant weighed the 74 packets which were of 428 Kgs. of Ganja. Police lifted 150 grams of Ganja two in number as samples under Ex.P.2. A notice was served on the accused asking his consent to weigh the contraband which is Ex.P.8. Accused signed in Ex.P.8. All 74 packets were verified and a Kirana merchant weighed the 74 packets which were of 428 Kgs. of Ganja. Police lifted 150 grams of Ganja two in number as samples under Ex.P.2. On the next day also at 8-00 a.m., he was summoned to the police station and in his presence and in the presence of mediators, police lifted 72 samples from the rest of 72 packets under Ex.P.3 mahazar. 18. In the light of the contentions advanced and in the light of the charge framed, prosecution has to prove two aspects i.e., one is that the accused was found in possession of 428 Kgs. of Ganja on 09.03.2004 at Boyapadu-Kakarapadu, in the manner as alleged and that the police followed the relevant mandatory provisions of N.D.P.S. Act in detection of the case. 19. Firstly, I would like to proceed to deal with as to whether the contention of the appellant that the investigating officer did not follow the relevant procedure as contemplated under the N.D.P.S. Act is tenable. At the outset, the grounds of appeal are bereft of necessary details which mandatory provisions of N.D.P.S. Act are violated at the time of arrest of the appellant by the investigating agency. However, a perusal of the judgment of the Court below shows that the accused raised a contention before the Court below as to non-compliance of mandatory provisions under Sections 42 and 50 of the N.D.P.S. Act. In the light of the above, now it becomes necessary to deal with as to whether compliance of Section 50 of the N.D.P.S. Act is necessary and if so, it is complied by the investigating officer. For better appreciation, it is pertinent to refer here Section 50 of the N.D.P.S. Act. It runs as follows: 50. Conditions under which search of persons shall be conducted.— (1) 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. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. [(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.] 20. A close perusal of Section 50 of the Act means that if the arrested person requires that he should be searched before a Gazetted Officer or a Magistrate, the empowering officer shall take him to the Gazetted Officer or Magistrate. The law is well settled with regard to Section 50 of the Act. It has no application when there is no personal search of the accused. At this juncture, this Court would like to refer here the well established legal precedents under Section 50 of the Act. 21. In Bodaband Sundar Singh vs. State of A.P., 2001(2) ALD (Crl.) 928 (AP), there was a case where the investigating agency found contraband in possession of a box and zip bag of the accused. The trial court recorded conviction against the accused. Then, the matter went in appeal before the High Court of A.P., at Hyderabad. The High Court of A.P. referred various decisions and held that Section 50 of the N.D.P.S. Act would come into play only in the case of a search of a person as distinguished from search of any place etc. Then, the matter went in appeal before the High Court of A.P., at Hyderabad. The High Court of A.P. referred various decisions and held that Section 50 of the N.D.P.S. Act would come into play only in the case of a search of a person as distinguished from search of any place etc. The High Court of A.P. in arriving at such a conclusion relied on a decision of the Hon’ble Supreme Court in Kaleme Thumba vs. State of Maharashtra and further the Constitutional Bench decision of the Hon’ble Supreme Court in State of Punjab vs. Baladev Singh, (1999) 6 SCC 172 . The High Court of A.P. by following the above said decisions held that the search of a person indicates search of the body of the person but not other belongings like hand bags, suitcases, etc., as such when there is search of a person, then only the procedure contemplated under Section 50 of the Act has to be resorted to. 22. In Saikou Jabbi vs. State of Maharashtra in Criminal Appeal No.103 of 2003, 2004 (14) ILD 271, the Hon’ble Supreme Court dealing with Section 50 of the Act and also by relying upon the earlier decisions in Kaleme Thumba vs. State of Maharashtra and Baladev Singh (2 supra), held that language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises and is not applicable to other types of search. 23. The Hon’ble Supreme Court in State of Haryana v. Jarnail Singh and others, AIR 2004 Supreme Court 2491 also by following earlier decisions reiterated that Section 50 of the N.D.P.S. Act did not apply when the search of a Tanker was conducted because it was not a personal search. 24. Apart from this, the Hon’ble Supreme Court in 2014(1) ALD (Crl.) 909 (SC) had an occasion to refer the Constitutional Bench decision in State of Punjab vs. Baladev Singh (2 supra) equivalent to AIR 49 SC 2278. 24. Apart from this, the Hon’ble Supreme Court in 2014(1) ALD (Crl.) 909 (SC) had an occasion to refer the Constitutional Bench decision in State of Punjab vs. Baladev Singh (2 supra) equivalent to AIR 49 SC 2278. The Hon’ble Supreme Court extracted the observations in Baladevi Singh’s case (2 supra) as follows: (1) That when an empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 being taken to the neared Gazetted Officer or to the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (2) That failure to inform the person concerned about the existence of his right to be searched before a Gazetted officer or a Magistrate would cause prejudice to an accused. (3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazette officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazette officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act. 25. Therefore, it is very clear that non-following of Section 50 of the N.D.P.S. Act may not vitiate the trial but would render the recovery of illicit article suspect and vitiate the conviction and sentence. Coming to the case on hand, Ganja is said to be recovered from the vehicle bearing Registration No.MH 18A 7501, as such, there is no violation of Section 50 of the Act. 26. Coming to the case on hand, Ganja is said to be recovered from the vehicle bearing Registration No.MH 18A 7501, as such, there is no violation of Section 50 of the Act. 26. When non-compliance of Section 50 of the Act was raised before the Court below, the learned Special Judge under impression that compliance is necessary, gave finding that P.W.6 was no other than a Gazetted Officer belonged to revenue department and though the notice said to be served by P.W.6 under Ex.P.8 was not found place in Ex.P.1, mahazar, but, however, there is a strict compliance of Section 50 of the Act because P.W.6 belonged to a revenue department and he was M.R.O./Executive Magistrate. While holding so, the learned Special Judge negatived the contention of the accused. As this Court already pointed out the settled legal principles with regard to Section 50 of the Act, is such that it has no application when there was no personal search of the accused. Hence, absolutely, this Court is of the considered view that compliance of Section 50 of the Act, in the light of the facts and circumstances, as referred above, is not at all necessary and the investigating officer was not supposed to comply it. However, he claimed to have secured the presence of P.W.6 at the time of search. In the light of the above, the contention of the appellant that the search was vitiated on account of the non-compliance of Section 50 of the Act is not tenable. 27. Coming to the contention of the accused that there was violation of Section 42 of the N.D.P.S. Act, now, I proceed to deal with the same. Firstly, I would like to deal with as to whether the compliance of Section 42 of the Act is necessary in this case and if so it is complied. Section 42 of the Act runs as follows: 2[42. Firstly, I would like to deal with as to whether the compliance of Section 42 of the Act is necessary in this case and if so it is complied. Section 42 of the Act runs as follows: 2[42. Power of entry, search, seizure and arrest without warrant or authorisation.— (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 intelligence 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: 1[Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made there under, such power shall be exercised by an officer not below the rank of sub-inspector: Provided further 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.] 28. A close perusal of Section 42 of the Act means that if the empowered officer has any information out of his personal knowledge or information given by any person and taken down in writing about the storage of any narcotic drug or psychotropic substance in any house, enclosed place or in any conveyance, he may between sunrise and sunset enter into and search any building, conveyance or place and seize such contraband. The proviso of Section 42 reveals that such search can be conducted between sunset and sunrise. When Section 42(1) contemplates search during day time, the proviso contemplates search during night time. According to Section 42(2) of the Act 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 72 hours send a copy thereof to his immediate official superior. 29. Now, coming to the case on hand, it is not the case of the prosecution that the investigating officer received any information given by any person and taken down in writing that Ganja was being transported by any person. On the other hand, the evidence of P.W.4, the Sub-Inspector of Police and P.W.5, the Inspector of Police, coupled with the contents of Ex.P.1 means that basically the police party received information as to the fact that a lorry met with an accident and there appears to be some Ganja in the lorry. This fact was fortified for the reason that police also included Section 279 of I.P.C. in the F.I.R. and charge sheet. Therefore, having got the information about the fact that a lorry met with an accident, but with information that there was Ganja in the lorry, police party claimed to have proceeded to the place of accident. So, it is not a case where the investigating officer had received any specific information that in a particular lorry, Ganja was being transported from one place to another. So, it is not a case where the investigating officer had received any specific information that in a particular lorry, Ganja was being transported from one place to another. During the course of cross examination of P.W.4 and P.W.5, they were not at all cross examined as to mode of information received by the investigating officer and as to whether it was specific to comply the mandates of Section 42 of the Act. Absolutely, there was no cross examination regarding the above aspects. The facts and circumstances are such that the investigating officer had no specific information about the transportation of Ganja in a particular mode and that the information was given by any person in writing, etc. Even otherwise, this Court is of the considered view that in the light of the peculiar facts and circumstances, Section 43 of the N.D.P.S. Act has application to the present situation. 30. Section 43 of the N.D.P.S. Act runs as follows: 1[43. Power of seizure and arrest in public place.—Any officer of any of the departments mentioned in section 42 may— (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act 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; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.—For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.] 31. A close perusal of Sections 42 and 43 of the N.D.P.S Act, discloses that they are distinct and separate. Explanation.—For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.] 31. A close perusal of Sections 42 and 43 of the N.D.P.S Act, discloses that they are distinct and separate. Section 42 of the Act prescribed a specific procedure if there was specific information about the fact that drugs or psychotropic substances or controlled substances in respect of which an offence under the Act has been committed is kept or concealed in any building, conveyance or enclosed place. In such circumstances, a search is contemplated between sunrise and sunset subject to the procedure therein. It provides further search between sunset and sunrise by recording the grounds of plea. Coming to Section 43 of the Act, it contemplates power of seizure and arrest in public place by any officer contemplated in Section 42. Therefore, Section 43 refers to the power of seizure and arrest in public place by the officers mentioned in Section 42. Nowhere it is provided in Section 43 of the Act that the procedure contemplated under Section 42 has to be followed. 32. Apart from this, the Hon’ble Supreme Court in Jarnail Singh’s case (supra) clearly held that “Section 42 and 43 contemplate two different situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, if a pubic conveyance is searched in a public place, the Officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and the sunrise. In the instant case, the tanker was moving on the public highway when it was stopped and searched. Section 43, therefore, clearly applied to the facts of the case. Thus there was no requirement of the Officer conducting the search to record the grounds of his belief as contemplated by the proviso to Section 42. More so, when Superintendent of Police was also a member of the searching party.” 33. Section 43, therefore, clearly applied to the facts of the case. Thus there was no requirement of the Officer conducting the search to record the grounds of his belief as contemplated by the proviso to Section 42. More so, when Superintendent of Police was also a member of the searching party.” 33. While holding so, the Hon’ble Supreme Court reversed the judgment of Punjab and Haryana High Court and restored the conviction imposed against the respondents by the learned Special Judge. 34. There is no dispute that the place of recovery of the Ganja was from the lorry and it was found in the forest area by the side of road after it met with an accident. So, the place of recovery was a public place. Keeping in view, this Court is of the considered view that compliance of Section 42 of the N.D.P.S. Act is not at all necessary in the case on hand and the learned Special Judge rightly negatived the contention of the accused before the Court below. 35. Now I proceed to deal with as to whether the evidence adduced by the prosecution before the Court below regarding the manner in which they claimed to have recovered the Ganja is convincing or not. The accused agitated before the Court below that he was not the driver of the vehicle in question. As seen from Ex.P.1, the case of the prosecution is that the accused along with another driver and another person brought the Ganja and the vehicle when the accused was driving met with an accident and other two persons absconded and he received injuries and was there by the side of the vehicle. The accused got cross examined P.W.6, the investigating officer. The accused got made certain suggestions to P.W.6 which he admitted. In cross examination, P.W.6 deposed that “it is true that I got issued a telegram to the owner about the fact that the accused was caught when the lorry which was transporting Ganja met with an accident.” He deposed further that on verification of the records, he could know the name of the owner. He did not examine the lorry owner. As per his investigation, the accused was the driver of the lorry which met with an accident. He did not examine the lorry owner. As per his investigation, the accused was the driver of the lorry which met with an accident. He denied that they did not go to the alleged scene of offence on 09.03.2004 and accused was not found at the lorry with injuries and the accused has nothing to do with the lorry as alleged. The similar suggestions were also put forth before P.W.1 and P.W.5, the Sub-Inspector of Police and they denied the same. The defence of the accused was that he was not at all present at the scene of offence and he did not receive any injuries and he was implicated falsely. If that be the case, it is not understandable as to how accused got suggested to P.W.6 that he intimated to the owner of the vehicle that accused while driving the vehicle by transporting the Ganja met with an accident. In my considered view, the evidence of P.W.1, P.W.4, P.W.5 and P.W.6 as to the presence of the accused with minor injuries by the side of lorry bearing Registration No.MH 18A 7501 was fully established by the prosecution. Under the circumstances, the contention of the accused that he was not the driver of the vehicle in question is not tenable. 36. It is a fact that during the course of trial, the vehicle was not produced before the learned Special Judge. According to the evidence of P.W.6, the investigating officer, he could ascertain the name of the owner of the vehicle. It is a fact that he did not file C-book and other records of the lorry into the Court and even he did not examine the lorry owner. Certain provisions of N.D.P.S. Act contemplates the confiscation of goods used for concealing illicit drugs or substance and in the light of the facts and circumstances, the non-production of the lorry before the Court below cannot be taken as a circumstance to doubt the veracity of the prosecution case. 37. According to the case of the prosecution, the accused belonged to Karnataka State. The contention of the appellant is that he does not know Telugu language and he knows only Kannada language and taking advantage of the same, his signatures were obtained, as such, entire seizure was vitiated. 37. According to the case of the prosecution, the accused belonged to Karnataka State. The contention of the appellant is that he does not know Telugu language and he knows only Kannada language and taking advantage of the same, his signatures were obtained, as such, entire seizure was vitiated. Coming to the evidence of P.W.1, the mediator, in cross examination he deposed that accused does not know Telugu language and Hindi language and he knows Kannada language. He (P.W.1) knows Kannada language. He further deposed that the Inspector of Police questioned the accused in Telugu language. Witness adds that in partly he knows Kannada and the accused gave answers in Telugu partly. Accused signed in Ex.P.1 in English. The answers that were elicited from the mouth of P.W.1 reveal that accused know Telugu language. Coming to the evidence of P.W.4, the Sub-Inspector of Police, he was not cross examined as to whether the accused know the Telugu language or not and that he knows only Kannada language. Coming to the evidence of P.W.5, the investigating officer, he denied that taking advantage of the fact that the accused had no knowledge about Telugu language, he obtained his signatures on all papers by using force. 38. As evident from the record of the Court below, the accused understood Telugu language at the time of framing of charges and also at the time of answering the questions that were put to him under Section 313 of Cr.P.C. examination. In Ex.P.8, the accused signed in English. He also signed in mediators report in English. He answered the charge in Telugu and also the examination under Section 313 of Cr.P.C. in Telugu, but signed in Hindi language. So, all these go to show that the accused could understand Telugu language. In my considered view, the learned Special Judge rightly dealt with this contention and rightly negatived the contention of the accused. The contention of the appellant that the search and seizure was vitiated, as the accused does not know the Telugu language is not at all tenable. 39. It is a case where according to the case of the prosecution the police party in the presence of P.W.1 and P.W.6 found 74 packets of Ganja in the vehicle in question. Ex.P.1 was the mediatornama in this regard. 39. It is a case where according to the case of the prosecution the police party in the presence of P.W.1 and P.W.6 found 74 packets of Ganja in the vehicle in question. Ex.P.1 was the mediatornama in this regard. On the same day, after bringing the property to the police station concerned, in the presence of P.W.1 and P.W.6, P.W.5 lifted two samples from two packets for the purpose of chemical analysis, but on the next day, i.e., on 10.03.2004 he again secured the presence of P.W.1 and P.W.6 and lifted 72 samples from other 72 packets. The evidence on record goes to show that earlier i.e., on 09.03.2004 the investigating officer might be under the impression that taking two samples from the Ganja may be sufficient, but on 10.03.2004 he could lift other 72 samples from the rest of 72 packets. This fact is deposed by P.W.1, P.W.5 and P.W.6 categorically. So, mistakenly the investigating officer could obtain only two samples from two packets on 09.03.2004 and realizing the mistake, on the next day he lifted 72 samples from the rest of the packets. This fact is quietly consistent by virtue of the evidence of P.W.1, P.W.5 and P.W.6 coupled with Ex.P.1 to Ex.P.3. Hence, non-lifting of 74 samples on 09.03.2004 is not fatal to the case of the prosecution. 40. Admittedly, to bring home the guilt against the accused, the prosecution has to establish the conscious possession of Ganja with the accused. The evidence adduced by the prosecution consistently proves the fact that the accused was in conscious possession of Ganja in the lorry by keeping himself by the side of the lorry. Accused belonged to Karnataka State. He had no occasion whatsoever to remain at the place of offence unless he put forth any tenable reason for his presence at the place of seizure. It is not his case that innocently without noticing any Ganja in the lorry he travelled in the lorry as a passenger. If such version is there, again he has to explain the circumstance as to why he was there at the lorry when other two persons absconded from the place. In fact, there would not have been any possibility for the accused to abscond from the place by leaving the huge quantity of Ganja at the scene with the lorry. If such version is there, again he has to explain the circumstance as to why he was there at the lorry when other two persons absconded from the place. In fact, there would not have been any possibility for the accused to abscond from the place by leaving the huge quantity of Ganja at the scene with the lorry. All these goes to show that the accused had knowledge about the Ganja in the lorry and he was responsible for bringing the same to the place of seizure. 41. The accused did not show any probability as to how he came into custody of the police party. His defence that as he did not know Telugu language, police obtained his signatures by force is not at all tenable. There is no dispute about the fact that the accused belonged to Karnataka State. The place of seizure was in the forest area in East Godavari District. The accused failed to explain as to why he was present at the place of offence. He denied that he was not present there and he did not receive any injuries. But, he had no say how he came into custody of the police. So, the evidence on record cogently establishes that the accused was in conscious possession of Ganja. 42. Now, it is relevant to refer herein certain presumptions as contemplated under Section 35 of the N.D.P.S. Act. According to Section 35 of the Act, 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. The explanation of the above shows that ‘culpable mental state’ includes intention, motive knowledge of a fact and belief in, or reason to believe a fact. The Hon’ble Supreme Court in 2003 (11) ILD 491 SC held that once possession is established, then the person who claims that it was not a conscious possession has to establish it because how he came to be in possession is within his special knowledge. 43. According to Section 54 of the N.D.P.S. Act, it contemplates certain presumptions. The Hon’ble Supreme Court in 2003 (11) ILD 491 SC held that once possession is established, then the person who claims that it was not a conscious possession has to establish it because how he came to be in possession is within his special knowledge. 43. According to Section 54 of the N.D.P.S. Act, it contemplates certain presumptions. According to the said section in trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused committed the offence under this Act in respect of any narcotic drug or psychotropic substance or controlled substance for the possession of which he fails to account satisfactorily. 44. It is no doubt true that the presumption under Section 54 of the N.D.P.S. Act and the presumption under Section 35 would arise after the prosecution discharged its burden to prove the recovery of the contraband from the accused. In my considered view, the prosecution discharged its burden about the recovery of contraband from the possession of the accused. In such circumstances, it is for the accused to prove the contrary. The accused had no semblance of say much less probable say to prove contrary. 45. Having regard to the above, this Court is of the considered view that the prosecution before the Court below cogently established about the recovery of huge quantity of contraband i.e., Ganja from the possession of the accused beyond reasonable doubt. A perusal of Ex.P.7, the analysis report, discloses that samples are of Ganja. The prosecution established the link between M.O.1 to M.O.74 with that of the Ganja that was seized from the accused. In my considered view, the learned Special Judge on factual aspects rightly appreciated the evidence on record and rightly found the guilty of the accused. The learned Special Judge imposed minimum punishment provided under law. 46. Having regard to the above, I am of the considered view that absolutely there are no grounds to interfere with the judgment of the learned Special Judge. 47. In the result, the Criminal Appeal is dismissed, as such, the judgment of the Court below in NDPS S.C.No.8 of 2005, dated 02.07.2010 shall stand confirmed. 48. 46. Having regard to the above, I am of the considered view that absolutely there are no grounds to interfere with the judgment of the learned Special Judge. 47. In the result, the Criminal Appeal is dismissed, as such, the judgment of the Court below in NDPS S.C.No.8 of 2005, dated 02.07.2010 shall stand confirmed. 48. The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the order of this Court to the trial Court on or before 09.03.2023 and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against the appellant and to report compliance to this Court. 49. The accused is directed to surrender before the Court below on or before 10.03.2023 and on such surrender the learned Special Judge shall take necessary steps to entrust the conviction warrant. If the accused fails to surrender on or before 10.03.2023, the learned Special Judge shall issue Non Bailable Warrant and shall take necessary steps to carry out the sentence imposed against the accused. 50. The Registry is directed to forward the record along with copy of the judgment to the Court below with special messenger on or before 07.03.2023. Consequently, miscellaneous applications pending, if any, shall stand closed.