JUDGMENT :

V.M. Deshpande, J.

By the present appeal, the appellant is challenging the judgment and order of conviction passed by learned Additional Sessions Judge, Washim dated 27.01.2006 in Sessions Trial 4/2003. By the said, learned Judge of the Court below convicted the appellant for an offence punishable under Section 20(b) (ii) of the Narcotic Drugs and Psychotropic Substances Act (For short "NDPS Act") and on this count, the Court below imposed sentence of rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, in default of payment of fine, further simple imprisonment of six months. Appellant was also convicted for the offence punishable under Section 27 (b) of the NDPS Act and on that count, he was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.5,000/-, in default of payment of fine, further simple imprisonment for two months.

2. This appeal was admitted on 14.02.2006 and on 18.3.2006 the appellant was released on bail. Heard Mr. Anil Mardikar, learned Senior Advocate with Mr. A. M. Joshi, learned counsel for appellant and Mr. S. S. Doifode, learned A.P.P. for the respondent-State. Both the learned counsel very elaborately detailed their submissions. From the submissions made before this Court in this appeal, the only question that this Court is required to address is; whether there was compliance of the provisions of Sub-Section (2) of Section 42 of the NDPS Act.

3. According to the learned counsel for the appellant, the said provision being mandatory in nature, its total non-compliance would render the trial vitiated and consequently the appeal will be required to be allowed.

4. To buttress his submissions, the learned Senior counsel relied on various authoritative pronouncements of the Hon'ble Apex Court.

5. Per contra, it is the submission of learned A.P.P. for the State that in view of the fact that there was sanha entry no.40 (Exh.10), to show that telephonically a secret information was received and it was transmitted to the Superintendent of Police and Sub Divisional Police Officer (SDPO) and on that there was no cross-examination on the part of the accused person. Therefore, in view of the authoritative pronouncement of the Hon'ble Apex Court in Gidhari and another .Vs. State of Rajasthan, (2010) 15 SCC 576, there is compliance of the said mandatory provision. He, therefore, urged that appeal be dismissed.

6. The facts giving rise to the present appeal are in very short compass and those are detailed as under: Mahadeo Todsam (PW2), on 04.09.2003, was working as Police Sub Inspector and was attached to Police Station, Washim. On the said day, at 14.00 hours, PI Patil and other staff members were present in the Police Station and received a confidential information. The said secret information was that appellant-Bhola Gupta stacked Ganja-a prohibited article, in his house at Washim. The said information (Exh.10) was noted in the station diary and it was communicated to the superiors.

7. Thereafter, pancha witness was called and gazetted officer was also called by giving letters (Exhs.11, 11-A and 12). Photographer and person to weigh the articles were also called by issuing letters (Exhs.13 and 14). In response to this, all these persons came to the Police Station and therefore the raiding party proceeded in pursuance to the secret information.

8. On 14.35 hours, they proceeded by a Government jeep at the house of the appellant who was present in the house. The raiding party clarified their purpose for their visit and disclosed that they wish to take search of house by giving communication (Exh.15) to the appellant. Thereafter, search was made and in the kitchen, two small bags were found containing 17.600 Kg. and 16.300 Kg. of Ganja. Thus, total 33.900 Kg. Ganja was found to be stacked in the house of appellant. The Measurer given a receipt which is on also record (Exh.16).

9. Four samples of 50 Gms. each were collected from each bag. The samples were seized on the spot