IMPORTANT POINT
Mention of fact of presence of Gazetted officer in raiding party while apprising accused regarding their right to be searched before Gazetted officer or Magistrate suggests by necessary implication that accused were discouraged in opting for search by independent authority and non compliance of mandatory provision of Section 50 of NDPS Act.

JUDGMENT

P.V. Kakade. J. - Both these appeals arise out of judgment and order passed by the Special Judge, Greater Bombay, in N.D.P.S. Special Case No. 13 of 1994, wherein in all seven accused persons were involved for commission of the offences punishable under the: Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as N.D.P.S. Act), out of whom Accused Nos. 1 and 2 were convicted for the commission of the offence under Section 22 read-with Section 8(c) of the N.D.P.S. Act, and each of them was convicted and sentenced to suffer R.I. for 10 years and to pay a fine of Rs. 1,00.000/-, in default to undergo R.I. for one year. They were also convicted for the offence punishable under Section 29 read with Section 8(c) of the N.D.P.S. Act and sentenced to suffer R.I. for 10 years and to pay a fine of Rs. 1,00,000/- each, in default to suffer R.I. for one year.

The substantive sentences were directed to run concurrently. Accused Nos. 3, 4, 5, 6 and 7 were acquitted of all the offences. Convicted accused Nos. 1 and 2 have preferred Criminal Appeal No. 673 of 1996, whereas the State has preferred Criminal Appeal No. 14 of 1997 against acquittal of five accused persons. Both the appeals have been heard together.

2. The facts giving rise to the case, in short, are thus :

On 4th November, 1993, Police Inspector Surya, Officer-in-charge of Ghatkopar - Unit of the Narcotic Cell, reported for duty at 7.30 a.m. Thereafter he received an information from his informant on phone that two persons, namely, accused Nos. 1 and 2 were about to deal in mandrex tablets near Rasul Jiva Compound, Kishavrao Khade Marg, Saat Rasta, Mumbai. The descriptions of the accused were also given. The informant himself showed his willingness to meet the officer to point out the said two persons. This information was reduced to writing in the information book and copies thereof were sent to the superior officers.

In consequence of this information, raid was arranged. Two panchas were called and they were apprised of the situation. Pre-trap panchanama was drawn and entry was made in the station diary. The raiding party alongwith panchas left for the spot at about 10-30 a.m.

The informant on the way and the vehicles were parked near the spot which was near Shirin Talkies at Saat Rasta area. About 10-15 minutes thereafter two persons were seen coming out of the gate of Rasul Jiva Compound and informant pointed them out to be the same persons who were suspects. Thereafter the informant went away. Accused No. 1 Shanna was carrying a gunny bag with him which he had kept near his feet arid he was talking to accused No. 2. At that time two customers came there. Accused No. 2 Papa was also carrying a bag with him. Accused Nos. 1 and 2 started talking with the two customers who had arrived on the spot. The said customers are accused Nos. 3 and 4. It is the, prosecution case that accused No. 1 opened the gunny bag and took out a packet containing something and handed it over to accused No. 3 and also one bag was handed over by him to accused No. 4. At that point of time members of the raiding party surrounded all the four accused and detained them. The officer P.I. Surya disclosed their identity being policemen and also expressed their intention to take their search on the ground that it was suspected that they possessed narcotics. The officer apprised them of their legal rights to be searched by a Gazetted Officer or a Magistrate, and further informed that he as well as P.I. Mehta accompanying him, were also Gazetted Officers, in the raiding party. Thereafter the search was conducted of all the four accused persons. Accused No.1 was found carrying 10 kgs. of mandrex tablets. Accused Nos. 2, 3 and 4 were found carrying 5 kgs. each, of mandrex, tablets, The raiding party thereafter conducted test on identification kit which confirmed the fact that the contraband article was mandrex tablets which was a narcotic. After necessary formalities a panchanama in deta