JUDGMENT - D.K. TRIVEDI, J.:---These two appeals arising from the judgment and order of conviction recorded by the learned Additional Sessions Judge, Malegaon District, Nashik in Sessions Case No. 65 of 1993, convicting both the accused for the offences under section 21 of the N.D.P.S. Act and both the accused were ordered to suffer R.I. for 10 years each and to pay fine of Rs. 1,00,000/- each in default to suffer R.I. for 2 years each.

2. Criminal Appeal No. 177 of 1995 is filed by accused No. 1 Shaukat Ali Sayyed Rashid and Criminal Appeal No. 183 of 1995 is filed by original accused No. 2 Ekbal Ahmed Jainulabedin for challenging the judgment and order of conviction and sentence.

3. We have heard Mr. Gavnekar learned Counsel appearing on behalf of the appellant in Criminal Appeal No. 177 of 1995. Mr. Niranjan Shimpi in Criminal Appeal No. 183 of 1995 filed by original accused No. 2, and Mr. Singhal, learned A.P.P. for the State/respondents.

4. During the course of hearing we have taken through the evidence of prosecution witnesses and the judgment under challenge. Prosecution witness No. 5 P.S.I. Shaikh Nisar, attached to City Police Station, Malegaon, while he was on duty on 26th February, 1993 received an information that two persons named Shaukat Ali and Ekbal Ahmed (appellants herein) are selling brown sugar behind central talkies in idgaa area. On receiving the information he called for two panchas for the purpose of carrying out a raid and before proceeding to raid he made an entry in the station diary to the effect that raiding party went towards the place where, as per the information, the accused are selling brown sugar and on reaching there they found that the accused were sitting on a wooden log near central talkies. On seeing the police party the accused started running and another group of raiding party coming from Kumbharwada caught hold of the accused. The accused were informed about the intention of the raid and asked them whether they want to get themselves searched in presence of Gazetted Officer or Magistrate. When the accused declined to carry out search before the Gazetted Officer or Magistrate, search of the accused in the presence of panchas were carried out, and from the possession of accused No. 1. One gram 500 mg. brown sugar was found and same was seized. From the personal search of original accused No. 2 one gm. 350 mg. brown sugar was seized in the presence of panchas and a sum of Rs. 166.70 ps. was recovered from accused No. 2, and the panchanama to that effect was prepared in the presence of panchas. The copies of the panchanama were furnished to the accused P.W. No. 5 P.S.I. Shaikh Nisar has lodged a complaint in the City Police Station against the accused and the information about raid was conveyed to his Superior Officer. The seized Muddemal was sent for examination before the Chemical Analyser at Bombay and after receiving report from the C.A. in positive in respect of seized muddemal, a charge-sheet was filed against the accused, and both the accused were placed for trial before the Additional Sessions Judge, Malegaon, District, Nashik for the offence under section 21 of the N.D.P.S. Act. The defence of both accused is of total denial and the accused were forcibly implicated in the serious offence.

5. To prove the charge against accused, the prosecution has examined in all five witnesses viz. P.W. No. 1 Ahmed Khan Kasam Khan Pathan, P.W. No. 2 P.S.I. Shaikh Shaukatali Ibrahim Shaikh, P.W. No. 3. Abdul Latif Mohammad Hanif the panch witness. P.W. No. 4 Police Constable Bhausaheb Bhaguji Thakare and P.W. No. 5 Investigating Officer Shaikh Nisar Ahmed Chand.

6. It is clear from the evidence of the prosecution that the witnesses have deposed in respect of the raid carried out in the presence of panchas on 26th February, 1993 at about 18.40 hours at a place viz. on the eastern side of central talkies on a public place. In his deposition of P.W. No. 5 Shaikh Nisar has stated that on 26-2-1993 at ab

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