1. The Appellant was the Accused No.1 in N.D.P.S. Special Case No.36 of 2004. The Special Court constituted under the provisions of Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as “the NDPS Act”), convicted him and the other accused – the Accused No.2 Sadruddin Hussain Mohammad Jamadar Shah – of an offence punishable under Section 21 of the NDPS Act. The Appellant was sentenced to suffer R.I. for 10 months and to pay a fine of Rs.5,000/, in default to suffer R.I. for 3 months. The Accused No.2 Sadruddin was sentenced to suffer R.I. for 6 months and to pay a fine of Rs.1,000/, in default to suffer R.I. for 1 month. The Appellant, being aggrieved by the said Judgment and Order of conviction and sentence, has filed the present Appeal.

2. I have heard Mr. S.S. Bhandari, the learned Advocate for the Appellant and Smt. V.R. Bhosale, the learned APP for the Respondent-State. I have gone through the evidence adduced before the trial Court and other relevant record. I have taken into consideration the authoritative pronouncements of various High Courts and of the Supreme Court of India, which have been relied upon by the learned Counsel.

3. The prosecution case before the trial Court was as follows :

That, on 29th January, 2004, PSI Gajanan Gulhane attached to Anti Narcotics Cell, received secret information that two persons: namely, Sony alias SulemanAfrican (the Appellant) and Sadruddin H. alias ChachuAfrican (the original Accused No.2) would be coming near Regal Cinema, Shyamaprasad Mukherjee Chowk, Mumbai between 3:30 p.m. to 5:00 p.m. to sell Cocaine. PSI Gulhane recorded this information in the Station House Diary and submitted the copies thereof to the Deputy Commissioner of Police, Assistant Commissioner of Police and Senior Inspector of Police, of Anti Narcotics Cell. The Deputy Commissioner of Police formed a team under the leadership of Police Inspector Shinde which included PSI Gajanan Gulhane (PW5) himself, PSI Sanjay Patil (PW3), a lady Police Constable Smt. Kharat and Police Constables Dalvi and Ghatge, etc. Two Panchas – one Atul Akhil Sarkar (PW4) and Smt. Sabina Sangle (PW2) – were called and selected to work as such. After drawing a pretrap Panchanama in the office of the Anti Narcotics Cell, the Police Party and Panchas left for the spot, taking with them the necessary material for sealing and labelling, drug testing kit, weighing scales, etc. The search of the Panchas was taken by the Police personnel and the search of the Police personnel was offerred to and taken by the Panchas to ensure that nothing objectionable or incriminating was possessed by any of them.

The Police party and the Panchas parked their vehicle near Magestic, M.L.A. Hostel and took positions near Regal Cinema, by forming two groups.

At about 3:00 p.m., two persons – the Appellant and the original Accused No.2 – came and stood near American Express Foreign Exchange Building. PSI Gulhane thought that they were the same persons, to whom the information received by him related. A signal was, therefore, given by him to both the groups of the Police party and the Panchas. The Appellant and the other accused were then surrounded by the Police party and Panchas. P.I. Shinde informed them about the information received and explained that he wanted to take their personal search. That, the Appellant as well as the other Accused were told, inter alia, that their search could be taken in the presence of a Magistrate or a Gazetted Officer and arrangements necessary for that purpose could be made, if so desired by them. However, the Appellant as well as the other Accused declined the offer given to them and permitted the Police to take their search in the presence of Panchas. Thereafter, the personal search of the Appellant and the other Accused was taken by PSI Gajanan Gulhane (PW5). In the pant pocket of the Appellant, three small plastic boxes were found. These boxes were found containing Cocaine weighing 3 gms. T