JUDGMENT :

V. G. BISHT, J.

This appeal is filed by the State challenging the judgment and order of acquittal dated 7th May, 1997 passed in NDPS Special Case No. 111 of 1995 by learned Special Judge, Greater Bombay for the offence punishable under Sections 29, 21 read with Section 8 (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “the NDPS Act 1985”).

2. Narrated in nutshell, the prosecution case is that, on 25th March, 1995 at about 09.00 p.m. Police Constable Harish Natu, i.e., informant, attached to Andheri Unit of Narcotic Cell received information from informer of Mr. Sharma to the effect that one Rameshwar Soni (respondent No.1 – A1) along with his associate were coming from Rajasthan and on 26th March, 1995 at about 10.30 a.m. they were to deliver heroin to one Kirti (respondent No.2 – A2) and his associate Majid (A3). The said informer also gave brief description of those persons. Informant accordingly passed the said information to PI Dhavale (PW4), who reduced it into writing in the information book and later on passed on to their Sr. PI Wadile, ACP Gaikwad and DCP Karkare of Narcotic Cell. PI Dhavale arranged raid as per the directions of DCP Karkare.

(a) On 26th March, 1995, informant arranged two panchas at about 08.15 a.m. Those panchas were apprised of the information received and after usual formality of search of police and panchas and drawing of pretrap panchnama, raiding party left the office at 09.50 a.m. They reached near Nanavati Hospital at 10.10 a.m. and waited in separate groups.

According to prosecution at about 11.30 a.m. two pedestrians arrived from southern side of S. V. Road while one of them was carrying black polythene bag and the other had military green colour hand bag. Informer, who had joined the raiding party, identified the first one as Rameshwar Soni (A1).

(b) At about 11.45 a.m. another pair of pedestrians arrived there and only one of them was carrying black polythene bag. Informer identified him as Kirti (A2) and his companion as Majid (A3). The raiding party then noticed that associate of A1, who had come with military green coloured hand bag, handed over the bag to Majid. Thereafter, raiding party surrounded the four accused persons.

(c) The prosecution then contends that after apprising the accused persons of their statutory right under Section 50 of the NDPS Act, 1985 all the accused were subjected to search. A1 was found possessing 1 kg. heroin and cash Rs.500/-. A2 also had 1 kg heroin and cash Rs.200/. The bag which was transferred by A4 to A3 contained three cloth bags. Each cloth bag contained 1 kg heroin. Thus, 3 kgs of heroin was recovered from it and there was also cash of Rs.400/. Two samples were drawn from each of the stocks. Stocks, samples and cash recovered were separately packed, sealed and labelled with labels signed by panchas and police officers under panchnama which was drawn on the spot. The accused persons and the contraband were then brought to Andheri Unit of Narcotic Cell.

(d) The prosecution lastly contends that after receipt of Chemical Analyzer reports, a chargesheet came to be filed against all the said accused persons. It appears from the record that the trial culminated into conviction of A3 and A4 whereas the present A1 and A2 came to be acquitted. Hence, this appeal against the said acquittal.

3. Mr. Konde Deshmukh, learned APP for the appellant-State, assailing the judgment of acquittal vehemently submitted that the learned trial Judge ought to have held that the present respondents were possessing the contraband at the time of raid and therefore, they were guilty of the offence punishable under relevant provisions of the NDPS Act, 1985. According to learned APP the learned trial Judge has erred in holding that there is contradiction in the evidence of PW1, PW2 and PW3. Despite there being consistent and cogent evidence, the learned trial Judge wrongly rejected the prosecution theory, leading to an erroneous judgment of acquittal,