JUDGMENT

Nanavati, J.-The appellants are challenging in this appeal, their conviction under Section 21 of The Narcotic Drugs and Psychotropic Substances Act, 1985. They have been convicted for keeping charas in their possession without any licence or permit. Appellant No. 1 has been convicted also under Section 21 for possessing heroin.

2. The prosecution case was that acting on information that Banobi - appellant No. 1 and her husband appellant No. 2 were keeping in their possession brown sugar and opium in their house and selling the same, P.I. Sheikh along with Lady Police Constable Pramila and two panch witnesses raided their house action 2.45 p.m. on 28.11.88. From the house one packet of charas containing 13 grams and 700 ml. grams was found concealed in a hollow space near the hearth in that house. On search by lady Police Constable Pramila, 13 small packets containing heroin were also found from the person of appellant No. 1. Though appellant No. 1 was not present at that time, it was alleged that he alongwith his wife was in possession of those substances. On these allegations both the appellants were tried for the offence stated above.

3. The trial Court believed the evidence of P.W. 4 - P.I. Sheikh, P.W. 1 - Mohasin, the panch witness, and P.W. 2 lady Police Constable Pramila and held that prosecution has successfully established that appellant No. 1 was in possession of heroin as well as charas and that appellant No. 2 was in possession of charas and that they did not have any licence or permit to possess the same. The trial Court convicted them. The High Court has confirmed their conviction as it also agreed with the appreciation of evidence by the trial Court and the findings recorded by it.

4. It was contended by the learned counsel for the appellants that the evidence as regards possession of charas by the appellants is inconsistant and ought not to have been relied upon. He submitted that as noted by the trial Court and also by the High Court, panch witness Mohasin has not referred to the recovery of packet containing charas and P.W. 2 Pramila has admitted that on search nothing was found from the house. This contention is really based upon misreading of the evidence of the three witnesses. P.I. Sheikh has deposed about recovery of one packet containing charas from a hollow place near the hearth and lady Police Constable Pramila has also stated that though during the first search nothing was recovered on further search they did find one packet containing charas from a hollow place near the hearth in that house. The panch witness Mohasin has also stated that 13 small packets were found from the possession of appellant No. 1, in addition to one packet which was already found. He has further stated that panchnama was prepared on the site and whatever is stated in the panchnama is correct. He has admitted his signatures thereon. He has also proved the signatures of the accused on that panchnama. In his cross-examination he denied that no search was made in his presence and nothing was found from that house. Thus, if the evidence of the three witnesses is read closely and carefully it becomes apparent that their evidence is consistant as regards the find of the packet containing charas.

5. It was next contended by the learned counsel for the appellants that while conducting the search of the person of appellant No. 1 there was non-compliance with the requirement of Section 50 of the N.D.P.S. Act and therefore we should not accept the evidence with respect to recovery of 13 small packets of heroin. The learned counsel for the respondent submitted that P.I. Sheikh had not informed appellant No. 1 about her right to be examined in presence of a Magistrate or a gazetted officer. The learned counsel is right in this behalf and therefore, the conviction of appellant No. 1 under Section 21 of the Act for possessing heroin will have to be set aside.

6. It was next contended that the conviction of appellant No. 2 cannot be sustai