Hon'ble GUPTA, J.—This appeal has been filed against the judgment and order dated 10.11.2005 passed in Sessions Case No. 4/2004 whereby the present appellants have been convicted and sentenced as under:-

Accused-Syed Jalaluddeen

S.8/20(b)(ii)(c) NDPS Act:

10 years' rigorous imprisonment and a fine of Rs. 1,00,000/- in default whereof to further undergo 2 year's rigorous imprisonment.

S. 8/21(a) NDPS Act:

Three month's rigorous imprisonment.

Accused -Beersingh

S. 8/20(b)(ii)(c) NDPS Act:

10 years' rigorous imprisonment and a fine of Rs. 1,00,000/- in default whereof to further undergo 2 year's rigorous imprisonment.

2. The brief facts of the case are that on 24.2.2004, the then SHO, PS, Kishanganj, PW.4 Suresh Kumar received an information through informer that two persons, viz., Kashmir and Khadim and staying in Ratidang, Mitra Nagar and having charas and they will soon leave to sale the same. The information was recorded as Ex.P/15. Independent witnesses were called. The SHO and other police personnel reached the place at 6.15 pm. The present appellants were having bags in their hands. They tried to run away. They were intercepted. They disclosed their identity as Syed Jalaluddeen and Beersingh. Notice under Section 50 of the NDPS Act was given and after following the provisions of the NDPS Act, search was conducted. In the search, 1.500 gms Charas was recovered from Syed Jalaluddeen and 1.150 gms Charas was recovered from Beersingh. 5 gms smack was also recovered from the pocket of shirt of Syed Jalaluddeen. Samples were taken as per the prescribed procedure and after completing all the formalities, a case was registered under Section 8/20 and 8/21 of the NDPS Act. After investigation, challan was filed and the charges were framed against the present appellants. The prosecution examined as many as 8 witnesses and exhibited 33 documents. The accused-appellants were examined under Section 313 Cr.P.C. No. defence witness was produced. The learned trial Court, after considering the material available on record, convicted and sentenced the present appellants as aforesaid. Hence, this appeal.

3. The contention of the present appellants is that there are several infirmities and contradictions in the statements of witnesses. The mandatory provisions were not complied with. He has submitted that the provisions of Sections 42, 50, 55 and 57 of the NDPS Act were not complied with. Motbir witnesses have not supported the prosecution story. There is a difference of weight in the sample received at the FSL and he has further submitted that the sentence is excessive.

4. The learned Public Prosecutor has submitted that the prosecution has fully proved its case and there is no infirmity in the conviction and sentence.

5. Heard learned counsel for the appellants and the learned Public Prosecutor and perused the record and the impugned judgment.

6. The first contention of the present appellants is that Section 50 of the NDPS Act has not been complied with. PW.4 Suresh Kumar Mehrania, who was the SHO, has stated that notice under Section 50 of the NDPS Act was given to the appellants and they have consented that search and seizure be made by the seizure officer and the consent memos Ex. P/3 and Ex.P.4 are on record. Learned counsel for the appellants has placed reliance on the judgment delivered in the case of Narcotics Central Bureau vs. Sukh Dev Raj Sodhi (2011 Cr.L.R. (SC) 545 = 2011(3) RLW 1964 (SC)) and submits that the present appellants were not taken to the nearby Magistrate and hence compliance of the provisions of Sec. 50 of the NDPS Act has not been made.

7. In the present case, the appellants have opted that search and seizure be made by the seizure officer and there was no need to take the present appellants to the nearby Magistrate. In Narcotics Central Bureau vs. Sukh Dev Raj Sodhi (supra), the accused opted that the search be made in presence of the Gazetted Officer and hence it was the duty of the seizure officer that the accused should

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