Important Point
It cannot be laid down as a preposition of law that in absence of independent evidence or any other supporting documentary evidence, oral evidence of a witness conducting the search cannot be regarded as sufficient for establish­ing compliance with the requirement of Section 50(1) of the Narcotic Drugs and Psycho­trophic Substances Act.

Judgment

Nanavati, J.-This appeal is directed against the judgment of the High Court of Madras in Criminal Appeal No. 544 of 1989. The High Court confirmed the conviction of the appellant under Section 8(c) read with Section 21 of the Narcotic Drugs and Psychotrophic Substances Act, 1985 and dismissed the appeal.

2. A complaint was filed by the respondent against the appellant alleging that the appellant was found in possession of 150 gms of heroin without a valid permit on 13.4.1988 at about 6 P.M. while he was passing on a road in the city of Madras and thus he had committed the aforesaid offence.

3. In order to prove its case the prosecution led the evidence of Gladys Lilly (P.W. 1), who was then working as an Intelligence Officer in the Narcotics Intelligence Bureau, at Madras and who had searched and arrested the appellant. It also examined N. Muthu (P.W. 4) who was taken as an independent witness to witness the search and arrest and in whose presence the search and arrest were made; but, he did not support the prosecution. Evidence was also led to prove that what was found from the appellant’s possession was di-acetyl Morphine, which is popularly known as ‘heroin’. The trial Court believed the evidence of P.W. 1 and the confessional statement (Exh. P-3) made by the appel­lant before P.W. 1 and convicted the appellant.

4. The High Court after re-appreciating the evidence held that the evidence of P.W. 1 was reliable and sufficient to sustain the convic­tion of the appellant. Probably because the High Court found his evidence sufficient, it did not record any finding with regard to acceptability of the confessional statement of the appellant.

5. Mr. Lalit, learned senior counsel for the appellant, submitted that the mandatory requirement of informing the accused about his right under Section 50(1) of the Act to be searched in presence of a gazet­ted officer or a Magistrate was not complied with in this case and, therefore, it could not have been held that heroin was found from the possession of the appellant. He emphasized that the independent wit­ness to mahazar has not supported the prosecution and the only evi­dence on the point of search and seizure is of P.W. 1. He also drew our attention to the admission made by P.W. 1 in her cross examination that she had not prepared any contemporaneous writing on the basis of which it can be said that she had informed the appellant about his right under Section 50(1). Both the Courts below, after due scrutiny of the evidence of P.W. 1, has found that P.W. 1 was a reliable wit­ness and there was no reason to doubt her version that she had in­formed the appellant about his said right. After carefully scrutiniz­ing the evidence of P.W. 1 we are of the opinion that it can safely be relied upon as it does not suffer from any infirmity nor is there any good reason for not accepting the same. We have scrutinized the evi­dence of P.W. 1 with more care because the learned counsel stated before us that P.W. 1 herself was subsequently involved in the offence under the Act and, therefore, she cannot be regarded as a reliable witness. After the hearing was concluded but before the judgment could be delivered written submissions were given by the learned Advocate on Record and therein also it is stated that P.W. 1 along with her hus­band has been involved in a case under the Act and that criminal proceedings are going on against them. Apart from the question of admissibility of her evidence we are of the view that her subsequent involvement, if any, in a criminal offence cannot affect her evidence in this case. The incident involving the appellant had taken place in the year 1988 whereas the incident involving P.W. 1 is stated to have taken place in the year 1998, that is after 10 years. We therefore, do not think it fit to consider this new material while appreciating the evidence of P.W. 1.

6. It was next contended by Mr. Lalit that oral testimony of a wit­ness alone cannot be regarded as suffici