IMPORTANT POINT
Provisions contained in Section 42 of N.D.P.S. Act are mandatory & question whether uny prejudice was caused or not to the accused was immaterial.

JUDGMENT

Vishnu Sahai, J. - The appellant aggrieved by the Judgment and Order dated 13-5-1993, passed by the Special Judge. Greater Bombay in N.D.P.S. Special Case No. 947/1990, convicting and sentencing him to undergo 10 years R.I. and to pay afineofRs. 1.00.000/- (Rupees One Lakh) in default to further undergo R.I. for 1 year under Section 21 read with 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 hereinafter referred to as the N.D.P.S. Act, has come up in appeal before us.

Alongwith the appellant, three others namely Joae Carlas Ca. Pauline Viera and Mrs. Nazma @ Ruksana Ibraham were also prosecuted and tried but they have been acquitted vide the impugned judgment. Against their acquittal the State of Maharashtra has preferred no appeal in this Court.

2. Briefly stated the prosecution case is that on 20-6-1990, at about 7.30 a.m. P.S.I. Madhukar Khangte P.W. 1 of Antop Hill Police Stat'ron, received an inforwation that some Negroes were dealing in drugs in Sector No. VII in Central Government Servant's Colony, Antop Hill. He conveyed the said information orally to his superior officer Senior Inspector of Police PI Chandrakant Chaugule P.W. 6. At 8.15 A.M. i.e. 45 minutes after receiving the information he recorded the same in Station Diary of Police Station Antop Hill - vide Exhibit 27 (English translation of the said entry is Exhibit 27-A). The said entry reads thus:

"(20) On receiving the special information about the persons possessing "Gard" powder, Police Inspector Chaugule, Police Sub-Inspector Khangte, Ram Kadam, Rajan Chougule and staff set out for making enquiries at Sector 7. CG5. Quarters, Antop Hill."

Immediately thereafter, Sr. P.I. Mr. Chaugule called for two persons to act as panchas, who came at the Antop Hill po

lice station. Thereafter he along with P.S.I. Khan the Panchas and others proceeded for carrying out the raid. They took with them drug identification kit. They went to Building No. 91, in Sector VII of Central Government Servant's Colony. Antop Hill. They reached the said building at about 11.50 a.m. the same day. They surrounded the said building. They went to the room situated on the ground floor. The same was opened by a Negro. After disclosing their identity to the occupants in the said room namely appellant. Joae Carlas Ca and Pauline Viera, they explained to them the purpose of their visit. They offered their search but the appellant and the two accused persons declined to take it. P.I. Chaugule enquired from the appellant and others as to what was in the three suit cases lying in the said room. All of them were locked and were of different sizes. The suit case of the size of 18" x 10" approximately belonged to Joae Carlas Ca. Joae produced the key of the suit case. Consequently, P.I. Chaugule opened the lock of the suit case. The cloth lining of bottom of the suit case was ripped open by P.I. Chaugule and thereafter a polythene bag in a sealed condition was found in the false bottom of the suit case. The said bag was opened and was found to contain some powder. When it was tested with the drug identification kit which they were carrying, it was found to be heroin. Thereafter they took the second suit case which was said to belong to Pauline Viera. That was also locked. Viera produced the key of the lock. The lock was opened. P.S.I. Khangte ripped opened the cloth lining of the bottom of the suit case and found a polythene bag in the false bottom. The bag was found to contain some powder. A small quantity of powder was tested by the drug identification kit by P.I. Chaugule and was found to contain brown sugar. Thereafter, they enquired about the third suit case. The appellant claimed it as his. It was also locked. He gave its key. After opening the lock and ripping opening the cloth lining at the false bottom of the suit case by PI Chaugule three polythene bags were found therein. The bags were opened. A small quantity of powder from each of them was tested by the drug iden