JUDGMENT - BRAHME P.S., J.: - Heard Mr. Patwardhan, learned Advocate for the appellant and Mr. Lanjewar, learned A.P.P. for State-respondent.

This is an appeal filed by the appellant Sanjay Pote challenging the Judgment and Order dated 1-6-2001 passed by the Special Judge, N.D.P.S. Court, Nagpur in Special Case No. 57/1999 convicting and sentencing him for offence punishable under section 21 of the Narcotic Drugs Psychotropic Substances Act, 1985 (for short -N.D.P.S. Act,) to suffer R.I. for 10 years, and to pay fine of Rs. 1,00,000/-, in default to suffer further R.I. for one month.

2. In short the prosecution case is that Police Head Constable-Hemant Pali (P.W. 1) attached to Crime Branch, Nagpur on 15-9-1999 received a secret information on phone that at New Shukrawari, Nagpur at Pote Masala Office, one person by name Sanjay was having in his possession Brown Sugar and he was selling the same. Police Head Constable Pali immediately reduced the information into writing and communicated the same to his Superior Officials i.e. P.L of Narcotic Cell, Crime Branch, Nagpur and as directed by him arranged for the raid. He reduced into writing, the secret information vide Exhibits 16 at 6.25 p.m. and before proceeding for the raid made entry in the Station Diary vide Exhibit 17 at 1835 Hours The raiding party headed by P.H.C. Pali reached to the house of Pote Masala at Navi Shukrawari area and on reaching there with P.L. Madavi and Panchas gave a call to the accused by name Sanjay and in response to his call the appellant came near the door and on inquiry then disclosed his name as Sanjay Moreshwar Pote, aged 30 year, resident of Old Subheadar Layout, Ward No. 105, Nagpur. Police Head Constable Pali informed him about the information received and also his intention to take search of his person and the office premises, he was also apprised of the provision contained in section 50(1) of the N.D.P.S. Act as personal search to be conducted in presence of the Gazetted Officer or Magistrate and he was further told, if desired, he would arrange for his personal search in the presence of the Gazetted Officer or Magistrate. He accordingly issued a written notice under Section 50 of the N. D. P. S. Act vide Exhibit 18 and the accused after being made aware of the contents of the notice declined the search before the Gazetted Officer or a Magistrate. The Head Constable and Panchas offered their personal search to the appellant, but he declined. It is in the presence of Panchas personal search of the appellant was taken and in that in the right hand side packet of his pant a plastic bag containing brown sugar powder was found. That powder was collected on a plain paper and it weighed 10 grams and out of that 5 grams of powder was taken as sample for analysis and it was sealed with the signatures of Panchas, Police Officer and the appellant. That sample sealed parcel was marked as S-1. The remaining powder was also separately sealed and it was marked as P-1. The empty plastic was separately seized and was marked as P-2. The search of the office was taken but nothing was found. Police Head Constable-Pali took the property in his custody and the appellant was arrested as he was informed that he was found in possession of narcotic substance and seizure panchnama was prepared in respect of the search and seizure that was carried out by them, but while the seizure memo was incomplete the appellant on interrogation disclosed that he was residing at Old Subhedar Layout and so Police Head Constable-Pali in order to take search of the house, proceeded to his house along with other members of the raiding party including the Panchas and after having entered in his house with him, the appellant himself produced a metallic foil and smoking pipe used for smoking brown sugar. The house was searched but nothing was found. The smoking foil and smoking pipe were seized and sealed and the sealed parcel was marked as S-2 and then seizure memo was completed, a co

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