Strict compliance with the mandatory requirements under the NDPS Act, including Section 50, is essential for the prosecution to establish guilt in narcotic cases.

JUDGMENT

R.D. Dhanuka, J. - By this appeal, the appellant (original complainant) has impugned the order of acquittal dated 23rd April, 1999 passed by the Special Judge (NDPS) for Greater Bombay acquitting the respondent no.1 of the offence punishable under Section 21 read with Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the said NDPS Act"). Some of the relevant facts for the purpose of deciding this Appeal are as under :-

2. It was the case of the prosecution that on 8th October 1997, PW-3-Superintendent Mr.Itty Mathew received an information in the evening that on the next day, there will be a narcotic transaction to be carried out by one person. The informant gave description of the said person to PW-3-Mr.Mathew and stated that the suspect would be having tattooing mark on his left hand. The said information was reduced into writing by Mr.Mathew and was kept in an envelope which was sealed and sent to the Assistant Director (PW-9). The extract of the said information was prepared and it was submitted to PW-9. On 9th October 1997, PW-3 along with other Intelligence Officers assembled in the office at 8.00 a.m. and chalked out their strategy to carry out the raid. They proceeded to the place at Kala Ghoda at 8.30 a.m. and maintained surveillance in the presence of Panchas.

3. At around 9.00 a.m., the members of the raiding party noticed one thin and tall personality. One of the officers closely passed nearby the suspect and confirmed the tattooing marks on his left hand. The said person waited on the spot for about 15 minutes and then started walking towards David Sassoon Library. He was holding a Addidas bag on his shoulder. The said person was stopped by the officers and disclosed their identity. He informed that he was working as a hamaal in the City Civil and Sessions Court, Mumbai. He was asked to reveal the contents of the Addidas bag which was carried by him. It was the case of the prosecution that Mr. Turiley who was working as an intelligence officer informed the respondent no. 1 that he had got right to be searched in the presence of the gazetted officer or Magistrate of his choice. It was informed to him that PW-3 Mr.Mathew was the Gazetted Officer present on the spot.

4. The respondent no.1 showed his willingness to be searched by PW-3. Thereafter his endorsement on the written offer about the appraisal of right under Section 50 of the said NDPS Act was taken. The Addidas bag carried by the respondent no.1 was thereafter opened and therein two plastic bags were found which were kept in brown coloured envelopes. There was powdery substance of brownish colour in those bags. Small quantity of the said substance was taken from both the bags and was tested on Field Testing Kit which resulted positive for the presence of heroin. Since the said place was not suitable for completing the other formalities and drawing of the panchnama, members of raiding party decided to go to their office. They took the PW-1, Panchas and the recovered muddemal article which was weighed and found to be weighing 1 Kg. to the office. Three representatives samples of the said muddemal were drawn by PW-1 and kept in separate small plastic bags which were sealed and kept in separate envelopes. Signatures of panchas and the Intelligence officer - PW-1 Mr. Turiley were taken on it.

5. It was the case of the prosecution that a team comprising of Intelligence Officer Mr.Malkani and Mrs.Tejwani was formed to raid the house of the respondent no.1. The said team left the office for going to Ambarnath at 1.05 p.m. on 9th October 1997 and reached near the place of the residence of the respondent no.1 at about 2.50 p.m. Two panchas from nearby area were called. On the search of the house of the respondent no.1, one transparent polythene bag containing brownish coloured powder was recovered from the loft in the kitchen of the house of the respondent no.1. In the said plastic bags, there was one more transparent plasti