JUDGMENT

A.M. Badar, J. (Oral) - By this appeal, the appellant/accused is challenging the Judgment and Order dated 19th October 2011 passed by the learned Special Judge, Mumbai in N.D.P.S. Special Case No.6 of 2009 between the parties thereby convicting the appellant/accused of the offence punishable under Section 20(c) read with Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ''the N.D.P.S. Act'' for the sake of brevity) and sentencing him to suffer rigorous imprisonment for ten years apart from imposing fine of Rs. One Lakh on him and directing him to undergo rigorous imprisonment for a period of one year in default of payment of fine.

2. Brief facts leading to the prosecution of the appellant/accused can be summarized thus :

(a) On 28/08/2008, P.W.No.7 Sampat Mane, PSI attached to the Anti Narcotic Cell (hereinafter referred to as ''ANC'' for the sake of brevity), Mumbai received a secret information from his informant. The information was to the effect that at about 3.00 p.m. to 3.30 p.m. on 28/08/2008, a person named Irshad Khan Khansab Pathan @ Charsi @ Baba is coming Ghodapdeo BEST bus stop, Bus route Nos.43, 44 and 45, Barrister Nath Pai Road, Reay Road (West), Mumbai for selling charas to his customers. The description of the said person was also given by the informant to P.W.No.7 Sampat Mane, PSI.

(b) On receipt of the secret information, P.W.No.7 Sampat Mane, PSI conveyed the information to P.W.No.4 Vilas Chavan, PI , who was present at the ANC Unit at Azad Maidan, Mumbai apart from telephonically conveying the same to the Senior Police Inspector, Assistant Commissioner of Police and Deputy Commissioner of Police, ANC Unit, Mumbai. This was done on getting the secret information recorded in the Station Diary (Exhibit 28) and then by forwarding the same to the DCP, ANC Unit by communication dated 28/08/2008 (Exhibit 28).

(c) P.W.No.7 Sampat Mane, PSI informed P.W.No.4 Vilas Chavan, PI with ANC that as per directions received from the DCP, P.W.No.4 Vilas Chavan, PI has to work out the said information. Necessary formalities were then undertaken. Two panch witnesses including P.W.No.5 Rehmat Husain Shah were summoned. They were made aware about purpose of calling them. The Police Officers and panchas took search of each others, but nothing incriminating was found during that search. The raiding material was also searched. No narcotic drugs or psychotropic substance was found in that search. Vehicle which was to be used for the said search and seizure was also searched, but no narcotic drug or psychotropic substance was found in that search. Then police team accompanied by panch witnesses left the ANC Unit after taking entry in the station diary for effecting search and seizure by carrying with it the material necessary for conducting raid including the seal. The vehicle was parked at the police station outpost of Beat No.4 of Kala Chowki Police Station. From there, members of the raiding party as well as panch witnesses went by walking to Ghodapdeo BEST bus stop, Bus route Nos.43, 44 and 45, Barrister Nath Pai Road, Reay Road (West), Mumbai.

(d) At about 15.10 hours, the appellant/accused came on the spot carrying red colour carry bag with him. At about 15.20 hours of 28/08/2008, he came to be apprehended by police team of ANC Unit. The appellant/accused was informed about his right to get his person searched in presence of the nearest Gazetted Officer or the Magistrate. He declined for the same. A notice informing him his rights under Section 50 of the N.D.P.S. Act was served on the appellant/accused. Still, he declined to exercise his rights.

(e) According to the prosecution case, then search of the polythene bag which was being carried by the appellant/accused was taken. It was found to be containing sticky blackish sticks, pieces of sticks and two flat slabs weighing 2 k.g. The said material was tested by the field testing kit and was found to be a narcotic drug -