Ramesh, J.

Appeal is by the Assistant Director of Directorate of Revenue Intelligence challenging the order of acquittal passed by the Special Judge, Mangalore in Spl. Case 49/2001 acquitting the accused for the offence under S. 8-C r/w S.21 of the Narcotic Drugs & Psychotropic Substances Act, 1995.

2. According to the prosecution, on 7.2.2001 on receiving reliable information, as per the directions of the Assistant Director of Revenue Intelligence, the Senior Intelligence Officer of the DRI proceeding to Suratkal along with his team viz., Prabhakar Poojary, Intelligence Officer, V.T. Joseph, Sepoy and two independent witnesses. Around 3.45 a.m. at Suratkal Bus Stand, they noticed a person wearing a blue T Shirt with a hand bag. As his identity tallied with the information received through the Assistant Director, they stopped the vehicle and on enquiry, the said person revealed his name as Syed Rahmath Pasha and when he was questioned about the contents of the bag, he was hesitant to reply. Thereafter, he was made know by the raiding party that he would be searched and also gave an option whether he would be agreeable to be searched before the Magistrate or a gazetted officer for which he has agreed to be searched in the presence of the gazetted officer. Since the Senior Intelligence Officer - PW 1 himself was a gazetted officer, in his presence they search the accused and also the hand bag carried by him and it was noticed that there were five polythelene bags containing some white colour substance/powder. On further enquiry, he has revealed that it was heroin given to him by one Ganapathi Naik of Kumta. The raiding party is said to have weighed the same in a scale and it was found to be in all, five kgs and the sample of the same was sent for chemical examination. Thereafter, mahazar was conducted and the accused was taken to the Customs Office. On getting the chemical examination report that the sample sent was heroin, after completion of investigation, the police after recording the statement of the witnesses and also the statement of the accused, filed charge sheet before the Special Court. Since the accused pleaded not guilty of the charges framed against him, prosecution examined in all five witnesses and got marked about seventeen documents and MOs 1-10. Thereafter, the accused was examined under S.313, Cr.PC. His defense was that he was taken from Kumta Bus Stand to the Customs Office and forcibly five signatures were taken by the Customs people and he has also denied all the incriminating circumstances against him.

Thereafter, after hearing both sides, learned Special Judge acquitted the accused. While acquitting the accused, it has held that the seizure mahazar has to be proved by independent witnesses and the procedure requires it should be devoid of all suspicions. Learned Special Judge has also noted that there is non-compliance of the mandatory provisions of S.50 of the NDPS Act in that, there is no option or choice given to the accused with regard to the search conducted in the presence of the Magistrate or gazetted officer. Further noting that the signature on the mahazar must have been taken after the spot writing of the mahazar, and that EX.Pl- mahazar cannot be believed and stating that instead of a mahazar it is in the form of narration of event, and noting the version of the independent witnesses that they were not present at the time of seizure, the Special Judge has acquitted the accused. Hence, this appeal by the State through the Directorate of Revenue Intelligence.

3. Heard Mr Arvind Kumar, Assistant Solicitor General representing the appellant and Mr P N Hegde, representing the respondent.

4. It is the submission of the appellant’s counsel that the NDPS Act is a special enactment. As per the provisions of the Act, special provisions like S.35 and S.66 provides for presumption of culpable mental state on the part of the accused and also presumption as to documents in certain cases as to its