JUDGMENT : P.G. AJITHKUMAR, J. 1. This is an appeal against conviction and sentence filed under Section 374 of the Code of Criminal Procedure, 1973. The 1st accused in S.C. No. 20 of 2015 on the files of the Special Court for NDPS Act, Vatakara is the appellant. He assailed the conviction and sentence for the offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The sentence imposed is rigorous imprisonment for three years and a fine of Rs. 15,000/- (Rupees Fifteen thousand only). 2. Heard the learned counsel for the appellant and the learned Public Prosecutor. 3. Case was originated on a complaint filed by PW-11, Excise Circle Inspector, Nilambur. PW-2 is the Excise Inspector, Kalikavu Excise Range who detected the offence. At about 8.00 p.m. on 20.12.2013, he along with his colleagues were checking vehicles near Amarambalam bridge on the Vaniyambalam-Anjam mile road. Two persons came riding the motorcycle bearing Registration No. KL38-3228. The 2nd accused was the rider and the 1st accused was on the pillion. PW-2 intercepted. Though stopped about 15 meters away, the 2nd accused soon took on his heels and ran away. The 1st accused had a plastic bag on his lap. On inspection, the bag contained 3.5 kgs of Ganja. His body was searched after giving him a notice informing him about the right to be searched before a Magistrate or a Gazetted officer and on his non insistence for the presence of a gazetted officer or a Magistrate. Nothing, except Rs.150/-, was obtained from this person. After preparing samples and necessary formalities of packing and sealing, the contraband was seized and the 2nd accused was arrested. Registration of the crime and necessary investigation were followed resulting in filing of the complaint. 4. Among PWs. 1 to 11 examined on the side of the prosecution, PW-2 and 3 are the detecting officers and the officer accompanied. PWs. 5 and 9 are witnesses to the search and seizure. Among them, PWs. 2 and 3 deposed in detail about the interception of the accused, search and the seizure. PW-5 stated that he signed Exts.P2 and P3 which are the Arrest memo, and Mahazar under which the contraband was seized at the place of occurrence. PWs. 5 and 9 are witnesses to the search and seizure. Among them, PWs. 2 and 3 deposed in detail about the interception of the accused, search and the seizure. PW-5 stated that he signed Exts.P2 and P3 which are the Arrest memo, and Mahazar under which the contraband was seized at the place of occurrence. He also admitted the signatures on the seal affixed on MOs 1 and 2 which are the residue of Ganja and remnants of the samples. He is an auto rickshaw driver and stated that he voluntarily put those signatures. He however, did not identify the appellant-1st accused or the 2nd accused before the court. PW-9 on the other hand totally resiled from his statement before the investigating officer and deposed that he did not see the search or seizure. He admitted Ext.P3, but took the stand that he signed those documents at the office of the excise officer. 5. The appellant was produced before the court and also the material objects without delay. A report as contemplated in Section 57 of the NDPS Act was sent on the very next day. The sample received in the court was forwarded to the chemical examiners’ laboratory along with Ext.P9 forwarding note. The report of the chemical examiner, Ext.P18 evidences that the sample was received by the expert in an intact condition and that the sample was found to be Ganja. 6. The investigating officer had recorded the confession statement from the appellant. It is Ext.P6. The court below by placing reliance on the evidence brought on record through the witnesses to the occurrence and others as also Ext.P6 confession statement found the appellant guilty and the 2nd accused not guilty. 7. The learned counsel for the appellant would submit that the seizure is illegal for non compliance of Section 50 of the NDPS Act. It is his contention that the bag was on the lap of the appellant and therefore it was an inextricable part of his body, and hence before inspection of the said bag, provisions of Section 50 should have been complied with. The learned counsel further submitted that the bag in which the contraband was enclosed had not been produced in court and in the absence of a chance to examine its nature, it cannot be said that it was not the part of the body. 8. The learned counsel further submitted that the bag in which the contraband was enclosed had not been produced in court and in the absence of a chance to examine its nature, it cannot be said that it was not the part of the body. 8. If the object searched is a part of the body of the person, Section 50 of the NDPS Act necessarily has to be complied with. The law was explained by a Constitution Bench of the Apex court in State of Punjab vs. Baldev Singh, (1999) 6 SCC 172 . The proposition was further explained in State of H.P. vs. Pawan Kumar, (2005) 4 SCC 350 . 9. In Dayalu Kashyap vs. State of Chhattisgarh, 2022 (12) SCC 398 the Apex Court specifically held that if the recovery was from a polythene bag which was carried by the accused, the recovery was not from the person and therefore non compliance of the provisions of Section 50 does not defeat the prosecution. 10. The contention of the appellant that the polythene bag in the possession of the appellant, in which the contraband was enclosed was not produced in court is not correct. Item No. 2 in Ext.P8 property list is the polythene bag. Appellant has no case that the contraband was not enclosed in a bag. From the cogent testimonies of PW-2 and 3, the nature of the bag is quite clear. When the contraband was enclosed in a polythene bag, and it was found on the lap of the appellant, his possession of the same is not open for challenge. In view of the law laid down in the aforesaid decisions the there was no requirement of compliance of Section 50 of the NDPS Act in the seizure of MO2 from his possession of the appellant. 11. The learned counsel for the appellant submits that since the independent witnesses turned hostile to the prosecution, and one among them, PW-9 claimed to have signed the Mahazar at the excise office, the recovery cannot be believed and the prosecution has to fail. In this regard, the learned counsel placed reliance in Sanjeet Kumar Singh AIR 2022 SC 4051 . The learned counsel for the appellant submits that since the independent witnesses turned hostile to the prosecution, and one among them, PW-9 claimed to have signed the Mahazar at the excise office, the recovery cannot be believed and the prosecution has to fail. In this regard, the learned counsel placed reliance in Sanjeet Kumar Singh AIR 2022 SC 4051 . In that case, the 2 independent witnesses, not only denied their presence at the time of seizure but also asserted that they signed the document at the police station when they reached the station in connection with some other case. Holding that their version was probable, the case of the prosecution was disbelieved. 12. In this case, PW-5 categorically stated that he signed Exts.P2 and P3 at the spot. Only thing is that he did not identify the appellant before the court. It came out in evidence that PW-9 is a person having acquaintance with the appellant for about 10 years. From the evidence on record, it is confirmed that PW-9 did not state the truth in court. It was after considering the nature of the evidence the court below placed reliance on the evidence of PW-2 and 3. I find no reason to interfere with the said finding. 13. The prosecution was lodged after complying with all the statutory formalities. In the body search of the appellant, nothing objectionable was found. That search was conducted by PW-2 after giving a proper notice, Ext.P1. Therefore the said search is quite legal as though no contraband was seized on that search. A detailed report regarding the detection of the offence was given to the superior officer in time as evident from Ext.P5. 14. In the circumstances, the evidence let in by the prosecution is proved beyond doubt that the appellant possessed 3.5 kgs of Ganja at the time when he was intercepted by PW-2. The presumption under Section 54 of the NDPS Act follows. Finding the appellant guilty u/s 20(b) (ii)(B) of the act is therefore sound and sustainable in law. 15. The court below relied on Ext.P6 confession statement of the appellant also to find him guilty. The presumption under Section 54 of the NDPS Act follows. Finding the appellant guilty u/s 20(b) (ii)(B) of the act is therefore sound and sustainable in law. 15. The court below relied on Ext.P6 confession statement of the appellant also to find him guilty. In Tofan Singh vs. State of Tamil Nadu, 2021 (4) SCC 1 the Apex Court in the majority judgment held that the officers who are invested with powers of investigation 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 Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act. 16. PW-11 conducted an investigation in the exercise of powers invested on him under Section 53 of the NDPS Act. In view of the law laid down in the aforesaid decision, Ext.P6 falls within the mischief of Section 25 of the Evidence Act and it is inadmissible in evidence. Therefore the said confession of the appellant cannot be used against him or his co accused. It has, however, no consequence since the prosecution proved beyond doubt based on the evidence it has produced that the appellant has committed the offence under Section 20(b)(ii)(B) of the NDPS Act. 17. The learned counsel for the appellant submits that the sentence imposed on the appellant is disproportionate to the offence. Having had due regard to the submissions of the learned counsel for the appellant and also the learned Public Prosecutor and further the fact that he did not involve in any other crime, I am of the view that a lenient view can be taken in sentencing him. 18. In modification of the sentence imposed by the court below, the appellant is sentenced to undergo rigorous imprisonment for a period of one and a half years and to pay a fine of Rs. 15,000/- (Rupees Fifteen thousand only). In default of payment of fine, he shall undergo rigorous imprisonment for a further period of 45 days. He is entitled to set off the period during which he was in custody in connection with this case. The appeal is accordingly allowed in part.